Earlier this month, a federal judge in Louisiana issued a ruling restricting various government agencies from communicating with social media companies. The plaintiffs, including the attorneys general of Missouri and Louisiana, argued that the federal government is forcing social media companies to restrict speech on topics such as vaccine skepticism. “If the plaintiffs’ allegations are true, this case would involve perhaps the most extensive attack on free speech in U.S. history,” the judge wrote in the preliminary injunction. The injunction will likely force agencies such as the Department of Health and Human Services and the FBI to force Facebook, Twitter, and others to remove or censor content. is no longer able to communicate with the platform. (The Biden administration appealed the injunction, and on Friday, the Fifth Circuit blocked the injunction. As the case progresses, a three-judge panel will soon decide whether to reinstate the injunction.) ) Critics have expressed concern that such an order would limit the president’s abilities. Government fights disinformation.
To better understand the issues at stake, I recently spoke by phone with Genevieve Laquier, a law professor at the University of Chicago Law School who specializes in social media and free speech issues. (We spoke before Friday’s break.) In a conversation edited for length and clarity, we discussed why this ruling is a departure from the way courts generally treat these issues. We discussed whether we had strayed too far and how concepts like free speech apply to government. The actors and why some of the communications between the government and social media companies were problematic.
In a very fundamental sense, what does this decision actually do?
As a practical matter, this essentially prevents most of the executive branch of the federal government from talking to social media platforms about what is considered bad or harmful speech on them.
There are injunctions, and then there are orders, and both are important. The command is a justification for the injunction, but it is the injunction itself that actually affects the world. And the injunction is incredibly broad. The report states that all of these defendants, including the President, the Surgeon General, the White House Press Secretary, the State Department, and the FBI, did not encourage, encourage, pressure, or induce companies to act in any way. It states that this must not be done. Something different than what they do in response to harmful speech. This is an incredibly broad language. This basically suggests that if you are a member of any institution or are named in this injunction, you cannot speak out against the platform for harmful speech. I think there is a high possibility that it will be interpreted as that meaning. You may not access the Platform until or unless the injunction is terminated.
But one of the puzzling things about this injunction is that there are these very significant carve-outs. For example, what I like is that the injunction basically says, “While you may communicate with the platform about threats to public safety or the security of the United States.” Now, of course, the defendants in the lawsuit will say, When we talk to you, when we talk to platforms about election misinformation and health misinformation, we’re warning them about threats to the safety and security of the United States. ā
In other words, from one perspective, injunctions can stifle vast amounts of speech. If you read it another way, nothing really changes. But of course, when such an injunction is issued by a federal court, it’s better to be safe than sorry. All government agencies and government officials listed in the injunction would be “better off shut up.”
And the reason why certain people, professions, and agencies are listed in the injunction is because the plaintiffs allege that these entities were communicating with the social media companies, right?
correct. and communicating in such a coercive or harmful or unconstitutional manner. The presumption of an injunction is that if they’ve done it in the past, they’ll probably continue to do it in the future. And stop continuing to violate the First Amendment.
As someone who is not an expert on this issue, I can think of the idea that you could tell the White House press secretary that she can’t get on the White House podium and shut down Twitter. COVID False alarm-
right.
Does this injunction pose problems on two fronts: freedom of speech? and Separation of powers?
Strictly speaking, when a press secretary is acting as a press secretary, she is not a First Amendment rights holder. The First Amendment limits and constrains government, but protects civilians. Therefore, when she is a civilian, she has all the rights of a civilian. Government officials technically do not have First Amendment rights.
That said, it is absolutely true that courts are considering the important democratic and expressive interests of government speech very seriously when considering the scope of the First Amendment. Therefore, although the chair of the government does not have First Amendment rights, he does have many interests that courts will consider. Supporters of the First Amendment will say that this injunction limits and harms really important government speech interests.
More colloquially, the irony of this injunction is that in the name of free speech, it chills a lot of speech. That’s how complex these issues are. When government officials use the bully pulpit, it can have a very powerful speech suppression effect. They can dampen many important speeches. However, one problem with the way the district court approached the analysis is that it does not appear to take into account the interests of the other side. Just as we think the government can go too far, we also think it’s very important for the government to have a voice.
What about the issue of separation of powers? Or is it not relevant here?
I think the way the First Amendment is interpreted in this area is an attempt to protect the separation of powers to some extent. Government officials may not have First Amendment rights, but they do important business and have the right to do so, including expressing opinions about what private citizens are doing or not doing. It is important to give them a lot of freedom in running their business. Courts generally recognize that government officials, members of Congress, and employees of the executive branch perform important work. Courts don’t want to second-guess everything they do.