A win for the First Amendment, and a loss for partisans who want to weaponize censorship

This article originally appeared in Reason magazine on July 16, 2023.

On America's birthday, yet another front in the culture war opened over the meaning of free speech.

The provocation? On July 4, a federal court ordered Joe Biden's White House and a bevy of federal agencies and officials not to pressure social media platforms to delete or suppress broad categories of information, including posts on the pandemic, the 2020 election, and Hunter Biden's laptop.

Initial reporting on Judge Terry A. Doughty's 155-page opinion in Missouri v. Biden reflected our polarized times. The Washington Post labeled the decision a "win for the political right" while The New York Times called it "a victory for Republicans." The headline for the Post story placed quotation marks around the word censorship.

But shouldn't this just be considered a win for the First Amendment and not a partisan matter? After all, most of us should be able to agree it's a bad idea for government officials to huddle in back rooms with corporate honchos to decide which social media posts are "truthful" or "good" while insisting, Wizard of Oz–style, "pay no attention to that man behind the curtain."

The constitutional principle involved is straightforward. As Judge Richard Posner explained in Backpage.com, LLC v. Dart, a government official who "threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority…or in some less-direct form."

Assuming it is upheld on appeal, as it should be, it will limit the ability of future administrations to engage in behind-the-scenes censorship. And that is true whether the administration is led by Biden, Trump, or someone else.

The problem with Missouri v. Biden is that the political noise surrounding the case is distracting attention from the important First Amendment principles at stake. And the even bigger problem is that the noise is coming from all sides—including those who brought the case, some of the reactions to it, and Doughty's opinion itself.

Unlikely Defenders of the Constitution

Start with the fact that the lead plaintiffs in the case are the attorneys general (A.G.s) of Louisiana and Missouri, who, along with four individuals, claim that the Biden White House (and other federal agencies) engaged in a pressure campaign to get social media companies to take down conservative posts. This has been a cause célèbre on the right since Donald Trump occupied the White House, based on the claim that "woke" liberal owners and workers at Big Tech companies primarily take down conservative-leaning content.

Other red states, like Texas and Florida, have tried to regulate social media platforms directly—so far with mixed results—with most courts finding that the First Amendment protects the companies' private moderation decisions. So this case represents a change in tactics but with the same desired outcome. If blunt-force speech regulation doesn't work because the First Amendment has too many defenders, why not join them?

A cynic might suggest that this newfound interest in freedom of expression is merely a ploy used for political advantage. After all, state A.G.s are unlikely defenders of the First Amendment given the members of that fraternity who make their political bones by mounting anti-speech crusades. There's a reason NAAG—the National Association of Attorneys General—is also known as the National Association of Aspiring Governors. (Or, as with former A.G.s Josh Hawley and Kamala Harris, aspiring senators and beyond.)

Now, it could be that these public officials, having taken oaths to defend the Constitution, have had epiphanies and decided to honor that promise. Missouri Attorney General Andrew Bailey described Doughty's opinion as "a huge win for the right to freely speak without government censorship" and pledged to "continue to lead the way in the fight to defend our most fundamental freedoms." Nice words, indeed.

But the same day Missouri v. Biden came down, Bailey was one of seven state A.G.s who sent a threatening letter to Target warning that the sale of LGBTQ-themed merchandise as part of a "Pride" campaign might violate state obscenity laws. The "merchandise" that raised their concerns included such things as T-shirts with the words Girls Gays Theys, and what the letter described as "anti-Christian designs," such as one that included the phrase Satan Respects Pronouns.

Say what you will about Target's merchandise decisions, the claim that such messages could violate obscenity law would embarrass a first-year law student. And by signing on to the Target letter while simultaneously issuing press releases praising Doughty's decision, Bailey showed his attitude toward constitutional freedoms is, well, flexible.

A Perplexing Decision

Doughty's opinion raised many questions of its own. It begins with the statement that the issues involved "go beyond party lines" and that the case "does not concern whether speech is conservative, moderate, liberal, progressive, or somewhere in between. What matters is that Americans, despite their views, will not be censored or suppressed by the Government." So far, so good.

But the opinion veers off from there and credulously accepts plaintiffs' claims that almost all of the contacts with government officials (and some civilians) were coercive, and it uncritically accepts assertions that "only conservative viewpoints were allegedly suppressed." These conclusions are supposedly buttressed by voluminous evidence unearthed in discovery, which accounts for the length of the opinion (including an 82-page discussion of the facts) and its 721 footnotes. However, there's a lot of chaff in these findings, and Doughty makes little effort to identify the wheat, thus contributing to the perception that he has signed on to a side in the culture war.

There's also the fact that Doughty was appointed to the bench by Trump in 2017 and confirmed in 2018, a fact universally reported in the stories on Missouri v. Biden. But, remind me—weren't we pretty outraged when Trump habitually criticized court decisions he disliked as being written by "Obama judges"? That practice led to a rare rebuke from Chief Justice John Roberts, who publicly said "we do not have Obama judges or Trump judges, Bush judges or Clinton judges," and that "an independent judiciary is something we should all be thankful for." That's the ideal, anyway.

If what Trump was up to was problematic under the First Amendment—and I believe it was—it is a little cheeky to suggest that the many contacts between members of the Biden administration and social media companies were just fine.

Unlike politicians, federal judges are required to "show their work," and it is through that we can all decide for ourselves how close they come to the ideal. Here, Doughty gives us 155 pages to work with, including the breathless claim in the opening paragraph that "the present case involves the most massive attack against free speech in United States history."

Really?

Measured against the Alien and Sedition Acts of 1798 that were passed to punish critics of the John Adams administration; the wholesale suppression of abolitionist literature before the Civil War; Abraham Lincoln's suspension of habeas corpus, which led to the lawless arrests of a dozen critical newspaper editors and the closure of nine newspapers; Anthony Comstock's four-decade crusade to outlaw any literature he considered immoral; the 2,000-plus prosecutions of World War I dissenters under the Espionage and Sedition Acts; Franklin D. Roosevelt's investigations and tax audits of unfriendly journalists; the Cold War abuses of McCarthyism; JFK's misuse of the Federal Communications Commission's Fairness Doctrine to muzzle right-wing commentators; Richard Nixon's illegal campaigns against the press; and Trump's designation of the press as the "enemy of the people," the allegations raised in this case are a pretty tepid candidate for the top censorship spot.

Tech writer Mike Masnick does an excellent job of sorting through the findings in Missouri v. Biden and concluding that the court identified a number of examples where administration contacts with social media companies appeared to cross the line into coercion, but that many of the examples cited by Doughty included "perfectly reasonable conversations about how to respond to actually problematic content as 'censorship' and 'coercion,' despite there being little evidence of either in many cases." Examples include sharing information about foreign trolls seeking to disrupt elections with false information and conversations with the Centers for Disease Control and Prevention (CDC) as part of an effort to understand the COVID-19 pandemic.

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And then there's the Hunter Biden laptop story. This has been a Holy Grail among conservatives looking for social media conspiracies, and Doughty found the FBI's "failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling."

Wait, what? Rather than complaining that the administration was pressuring social media companies to take information down, the problem, apparently, was that the FBI didn't advise social media companies not to moderate this story. Or, as Masnick summed it up, the thrust of the opinion was "don't communicate with social media companies, except if your communication boosts the storylines that will help Donald Trump."

And then there's the problem of timing. As anyone who has consulted a calendar lately will tell you, the laptop story broke in fall 2020, before the election and when Trump was still president. Doughty even acknowledges that government officials began publicly threatening social media companies in 2018, halfway through the Trump administration, but that the threats "intensified and became more direct" in the wake of COVID-19 and the 2020 election. And while he notes that efforts to coordinate cybersecurity responses "started in 2018," he inexplicably concludes that "there is no indication or evidence produced in this litigation that the Trump Administration had anything to do with it." OK, but it is far-fetched to believe the A.G.s driving this case went out of their way to present evidence of Trump abuses "in this litigation."

It seems so long ago, so it may be hard for some to remember that the threats and efforts to bully social media companies were pretty damn intense during the Trump years. So much so that the free expression organization PEN America, whose members include writers and journalists, even sued Trump in 2020 to stop his practice of threatening and intimidating media organizations.

Allegations in PEN America v. Trump included claims that the president leveraged antitrust actions against critical media companies, threatened to revoke broadcast licenses, and denied White House credentials to disfavored reporters. At the same time this was happening, social media companies were another favorite Trump target, and, among other things, he made frequent threats to revoke or reinterpret Section 230, the federal law that shields online platforms from liability for users' posts.

If what Trump was up to was problematic under the First Amendment—and I believe it was—it is a little cheeky to suggest that the many contacts between members of the Biden administration and social media companies were just fine. Key allegations in PEN America survived a motion to dismiss, but the case never proceeded to discovery because the Trump administration ended, mooting the case.

But having served as co-counsel in PEN America v. Trump, I am convinced that if that case had reached discovery, the resulting record likewise would have merited a 155-page opinion detailing the inside story underlying Trump's unceasing barrage of abusive tweets and his other threatening pronouncements. And, as lead counsel in Backpage.com, LLC v. Dart, I believe the types of direct and implied threats at issue would have violated the First Amendment test for unconstitutional intimidation.

Nothing To See Here?

There is little question that Doughty's opinion is overhyped and many of its findings are exaggerated, but it doesn't mean it is wrong.

The sheer volume of contacts revealed in discovery, including numerous meetings, emails, and demands for information, including "requests" related to particular content and what the companies planned to do about it, is cause for concern. And there were veiled (and some not-so-veiled) threats of adverse regulatory action if the companies hesitated to be cooperative "partners."

Biden's then–press secretary warned there would be "legal consequences" if the social media companies failed to more aggressively police their platforms, suggesting this could take the form of "a robust antitrust program." The White House communications director also announced the administration was reviewing Section 230 and seeking to determine "whether social media platforms are legally liable for misinformation spread on their platforms and examining how misinformation fits into the liability granted by Section 230."

The imperious tone used by some of the officials sounds downright Trumpy. Rob Flaherty, then Biden's director of digital strategy, was in constant contact with the social media companies, demanding reports, suggesting content that he believed should be removed, and reminding the companies that his concerns were "shared at the highest (and I mean highest) levels of the White House." On one occasion when he didn't get the response he wanted from Facebook, Flaherty demanded to know, "Are you guys fucking serious?" And he added, "I want an answer on what happened here and I want it today."

A charitable spin would be to suggest that the officials merely were seeking cooperation from corporate citizens in service of a noble cause. But that take would seem more reasonable if the message didn't come across as sounding like, "You got a nice business here—it would be a shame if anything were to happen to it."

Doughty described this as "unrelenting pressure from the most powerful office in the world," and given the frequency and regularity of the meetings, emails, phone calls, and demands by various administration officials relating to the companies' moderation decisions, he has a point.

What To Do About It

One fair critique of Doughty's decision is that it provides no coherent rule for when government contacts with social media platforms are appropriate and when they are not. The terms of the preliminary injunction are too broad, cover too many people (including many who are not even government officials), and are riddled with opaque and impossible-to-implement exceptions.

The injunction reaches a host of federal authorities, including the White House, the Justice Department, the State Department, the Department of Homeland Security, the FBI, the CDC, the Census Bureau, and the Cybersecurity and Infrastructure Security Agency, as well as named individuals in each of the named departments. It even reaches nongovernmental entities, such as Stanford University's Internet Observatory, the Election Integrity Partnership, and the Virality Project, all nonparties to the case, by barring the government defendants from coordinating with them.

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And then there's the breadth of the prohibition: The injunction bars, among other things, communications with social media companies that flag content or posts on social media platforms "urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech." It similarly prohibits communications urging companies to alter their moderation guidelines.

But apparently recognizing that the First Amendment does not bar all contacts between government and social media companies, the order exempts from the prohibition such things as postings involving criminal activity, national security threats, extortion or other threats, criminal efforts to suppress voting, cyber attacks against election infrastructure, foreign attempts to influence elections, threats to public safety, postings intending to mislead voters about voting requirements and procedures, and communications seeking to detect, prevent, or mitigate malicious cyber activity.

Perhaps my favorite is the catchall exemption for "permissible public government speech promoting government policies or views on matters of public concern." What does that even mean? Your guess is as good as mine, and Doughty offers nothing to clarify it.

The Department of Justice sought an emergency stay of the injunction from the U.S. Court of Appeals for the 5th Circuit, and argued, among other things, that the exceptions are undefined and unexplained. It observed that, according to Doughty's opinion, government actors violated the First Amendment when they informed social media that state or local election officials had flagged "disinformation aimed at their jurisdiction," yet the exceptions allow communications that inform social-media companies "of postings intending to mislead voters about voting requirements and procedures."

One might sympathize with any government lawyer tasked with the job of deciphering these mixed directives. But only to a point. Congress and state legislatures routinely pass broad and poorly defined speech restrictions, and the Justice Department generally has no qualms about defending them and even exploiting their expansive reach. So now the shoe is on the other foot.

Perhaps it is too much to imagine that this experience will lead the Department of Justice to be more sensitive to First Amendment vagueness and overbreadth concerns. But then, in this case, we have state A.G.s swearing they really care about the First Amendment, so I guess anything is possible.

One way to provide a check on government contacts that cross the line would be to oblige government actors proactively to disclose any contacts with social media companies where they seek to influence moderation decisions.

In the meantime, what should be done about Doughty's injunction? The Fifth Circuit granted the motion for stay, putting the injunction on hold during the appeal. This seems like the right call given the scope of the order and the many questions it raises. But what should the court do when it gets to the merits of the appeal?

Some—including a few longtime First Amendment advocates—have advocated overturning the injunction on appeal. However, while the court of appeals should clarify and narrow the terms of the injunction, reversing it would be a mistake. It doesn't require an active imagination to predict how far a future administration (of either party) might venture if the courts greenlighted this level of governmental meddling in private moderation decisions.

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Rather than reversing Doughty's decision, the 5th Circuit on appeal should use this as an occasion to reaffirm the rule in Dart, that a governmental entity "is entitled to say what it wants to say—but only within limits." There are many good reasons for government officials to communicate with social media platforms, but they are "not permitted to employ threats to squelch the free speech of private citizens."

This is not always an easy line to draw, but a reviewing court could do worse than to consult the Santa Clara Principles on transparency and content moderation devised by a broad coalition of human rights organizations, advocates, and academic experts. Those principles affirm that "state actors must not exploit or manipulate companies' content moderation systems to censor dissenters, political opponents, social movements, or any person."

One way to provide a check on government contacts that cross the line would be to oblige government actors proactively to disclose any contacts with social media companies where they seek to influence moderation decisions. The Santa Clara Principles provide that "governments and other state actors should themselves report their involvement in content moderation decisions, including data on demands or requests for content to be actioned or an account suspended, broken down by the legal basis for the request."

It's the Principle, Stupid

One thing is clear about Missouri v. Biden: The decision cannot be understood by viewing it through a polarized lens. Bullying tactics by government officials violate the First Amendment regardless of who controls the levers of power. Accordingly, it is not a huge victory for the right as some have imagined, or a loss for the left, as others fear.

Assuming it is upheld on appeal, as it should be, it will limit the ability of future administrations to engage in behind-the-scenes censorship. And that is true whether the administration is led by Biden, Trump, or someone else.

As to the A.G.s who brought the case, they might want to be careful what they wish for. First Amendment rules that constrain the White House also, obviously, limit the ability of politically ambitious state law enforcement officers to issue threats designed to bring recalcitrant businesses into line.

Target, are you listening?