An appeals court ruled against the Biden administration over its contacts with social media companies. NPR’s Michelle Martin speaks with Mark McCarthy of the Brookings Institution about the ruling.
MICHELLE MARTIN, HOST:
To what extent should the U.S. government try to influence social media content, even if the content contains lies? A federal appeals court has ruled that some federal agencies should try to influence social media content when it comes to content moderation. We have been prohibited from making inquiries to platforms such as YouTube and X (formerly Twitter). The court ruled that the U.S. government could force social media companies to violate people’s First Amendment rights by blocking content such as misinformation about the government’s response to the coronavirus and recent elections. He said that there is a sex. To talk more about this, I called someone who studies the intersection of government and technology. Mark McCarthy is a part-time senior fellow at Brookings, a research institute, a so-called think tank. His upcoming book is “Regulating the Digital Industry.”
There’s a backstory to this, but I don’t have time to explore it in detail. But for a brief moment, conservatives complained that the administration was trying to force social media platforms to silence their voices. Others, including the government, say they are simply trying to stop harmful misinformation that could harm people from spreading on social media. So, if we take this story for granted, at first glance Friday’s ruling would look like a panel of conservative judges seeking to limit the power of the liberal executive branch. But you said it’s not that simple. Take it from there.
Mark McCarthy: It’s not that simple. According to the court, federal authorities actually violated the First Amendment by forcing and significantly encouraging social media platforms to censor unfavorable speech. And they did this by threatening to take action against the government, including antitrust enforcement and legal reform. But the court also agreed with critics within the administration that the original injunction was vague and overbroad, and significantly narrowed the scope of the injunction.
MARTIN: How will people who use social media feel the impact of this?
MCCARTHY: Well, I think everyone should be concerned about the government’s actions in this case. In other words, government officials threatened social media companies with antitrust laws and removed favorable legal protections. And, you know, we found that Trump administration officials didn’t hesitate to try to appease conservative voices by threatening social media companies. And if there is a Trump presidency again, there’s a good chance they’ll try to do the same thing again and try to discriminate against progressive voices. Guardrails for government interactions with social media companies are therefore needed to protect all speech, not just conservative speech.
MARTIN: On the other hand, as I’m sure you know, critics are very alarmed by the recent explosion in violent themes such as anti-Semitism, racism, and misogyny. It is. You can select a month, i.e. any period of time. So the question is: Does the government have options to stop the spread of misinformation on social media without trampling on Americans’ First Amendment rights? I know it’s a big topic, but what do you think?
McCarthy: I think the government can clearly talk to social media companies about anything. And it can refer them to any speech it deems harmful or illegal. But it may not force or significantly encourage social media companies so much that the choice actually becomes the government’s. This is a well-known, if not entirely clear, standard derived from past case law.
The Fifth Circuit sought to address this issue with a new injunction. The agency said it cannot force or significantly encourage social media companies to remove content. It said it may not have suggested there would be any penalties for not complying with the request. The agency also said it may not have meaningful control over social media companies’ decisions. Is it clear enough? I don’t think so. I believe the Department of Justice will appeal the Supreme Court’s decision and seek a more pragmatic standard.
MARTIN: That’s Mark McCarthy, adjunct senior fellow at Brookings. His book “Regulatory Digital Industries” will be published in November. Mr. McCarthy, thank you so much for joining us and sharing these insights.
MCCARTHY: Thank you very much for inviting me.
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