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On Friday, in Missouri vs. Bidenthe U.S. Court of Appeals for the Fifth Circuit has ruled that the White House and several other federal government agencies violated the First Amendment by forcing social media companies such as Facebook and Twitter to remove material that the government deemed “misinformation” or otherwise considered harmful. I think the court largely got this case right. But the same court (albeit with a different panel of judges) got it very wrong last year NetChoice vs. Paxton, it enforced a Texas law that required many of those same companies to post material they disapproved. If the First Amendment prohibits the government’s coercion to remove speeches from your website, it also prohibits the use of coercion to compel you to put it up.
The ideological value of the two cases is different. In general, many on the left were sympathetic to the coercive government policies at stake Missouri vs. Bidenbut hostile to those who enter it NetChoice. Many conservatives hold the opposite views. But the principle at stake in both cases is the same. Government coercion is contrary to freedom of speech, whether it is imposed by the right or the left, and whether it forces people to suppress or incite speech against their will.
In Missouri vs. Biden. the Fifth Circuit concluded that the White House, the Surgeon General, and the FBI forced social media companies to remove material that those agencies had objected to:
On multiple occasions, officials forced the platforms to take direct action through urgent, uncompromising demands to moderate content. Privately, the officials were not shy in their requests, asking the platforms to delete posts “as quickly as possible” and accounts “immediately” and to “act more slowly.”[] down” or “demoted[]The officials were persistent and angry. When the platforms failed to comply, officials questioned why messages were still up, saying (1) “how does something like [this] happen”, (2) flag “what’s in it for you” if it didn’t result in content moderation, (3) “I don’t know why you guys can’t figure this out”, and (4) “you’re hiding the ball”, while demanding “assurances” that posts were removed.
And more importantly, the officials threatened – both explicitly and implicitly – to retaliate for the inaction. Officials have dismissed the prospect of legal reforms and enforcement action, while subtly insinuating that it would be in the platforms’ best interest to comply. As one official put it, “removing bad information” is “one of the easy, low-key things, guys [can] do to make people like me” – that is, White House officials – “think you’re taking action.”
It is notable that the file analyzed by the court does not appear to contain any examples of direct, unequivocal threats, such as: “If you don’t take down X, I will impose punishment Y.” But as the court recognizes, context matters. When a representative of a mob boss tells a business owner to pay protection money because “it’s one of the easy, low-threshold things you can do to make people like me and the Don happy,” the context strongly suggests a threat of coercion. . The same applies if a representative of a government agency with regulatory authority on Twitter or Facebook uses similar language to pressure those companies to remove material.
I am less convinced by the court’s ruling that “substantial encouragement” is defined as “exercising a government actor.”[ing] active, meaningful control over the private party’s decision” also qualifies as a violation of the right to freedom of expression. As the private party voluntarily state that government officials exercise such “meaningful control,” then I see no violation of the Constitution. Private media owners have the right to delegate publishing and editorial decisions to whomever they wish, including government officials.
There is a long history of partisan media outlets – including current entities like Fox News – coordinating programming with leaders of their preferred political party, including government officials. Such coordination may reflect poor journalistic ethics. But it is still protected speech.
Clearly, in some cases it may be difficult to determine whether the “significant encouragement” is voluntary or coercive. But only in the latter case should it be considered a violation of the First Amendment. In the first case, it is itself an exercise of a First Amendment right.
That said, it seems to me that the Fifth Circuit was right to apply coercion with respect to at least some of these government efforts, and right to issue an injunction against them.
The ban itself is worded so narrowly that both government officials and social media companies can speak freely, as long as there is no coercion or “significant encouragement” (relatively narrowly defined):
Defendants and their employees and agents will not take any action, formal or informal, directly or indirectly, to compel or significantly encourage any social media company to remove, remove, suppress or diminish any posted social media messages, including by modifying their algorithms modify. content that contains protected freedom of expression. This includes, but is not limited to, forcing the platforms to take action, for example by suggesting that some form of punishment will follow for not complying with a request, or by monitoring, directing or otherwise exercise meaningful control over the decisions of the social media companies. -making processes.
Unlike the much broader order issued by conservative District Court Judge Terry Doughty (which the Fifth Circuit reversed on this point), this does not prevent the White House and other agencies from speaking out about moderation policies on social media or contact with the companies that own them – as long as the contact does not result in ‘significant encouragement’. That seems right to me. Government agencies – or anyone else – can condemn the policies of social media companies and urge them to change. But they may not use coercion.
However, there is a tension between governing Missouri vs. Biden and that in it NetChoice vs. Paxton. If the coercion in the first case must be inferred from the context, in the second case it is much more blatant and obvious: Texas law openly states that major social media companies cannot refuse to post a wide range of material on based on objections to its content. If they do not comply, the state will force them to do so. If that isn’t government coercion of speech, I don’t know what is!
Some try to distinguish these two cases by arguing that forcing companies to organize speeches is not the same as forcing them to remove them. But freedom of expression includes the right to refuse to provide a platform for views you disapprove of. For example, it would clearly violate the First Amendment for the government to force Fox News to air left-wing views that its owners did not want to broadcast. Elsewhere, I have criticized arguments (adopted by the Fifth Circuit majority and others) to the effect that social media companies can be forced to platform views because they are “common carriers” (companies that are required by common law to serve everyone). These companies are not, and never have been, common carriers, and the standard reasons for common carrier status do not apply to them. They are even less applicable in an age where new alternatives to the currently most popular social media sites, such as Mastodon or Threads, regularly emerge.
I just want to add that these points are no less applicable to Twitter (or X) under the Elon Musk regime than to that of its previous owners. Musk differs from previous management in what he wants to bring down. But he nevertheless blocks certain forms of speech, and blocks or suspends some accounts.
I didn’t really like the policies of the previous Twitter management, and Musk’s even less. But both have the right to free speech, which should not depend on my approval – or that of the government. If Musk wants to block my account from his site because he doesn’t like my opinions, or even because he doesn’t like people whose last names start with the letter “S,” he should have the freedom to do so.
One possible explanation for the discrepancy between the two Fifth Circuit decisions is that the panels that heard them had different judges. I strongly suspect that if the panel heard that Missouri vs. Biden had also considered NetChoice vs. Paxton, in the latter case, they would have reached a different decision, one more similar to Judge Leslie Southwick’s dissent in NetChoice, or the Eleventh Circuit ruling striking down a similar law in Florida (authored by conservative Trump-appointed Judge Kevin Newsom). This is especially likely in the case of Judge Don Willett, a member of the Missouri vs. Biden panel who is one of the most libertarian-oriented judges in the entire federal judiciary.
Judges Edith Clement and Jennifer Elrod, the other two judges on the Missouri panel, also seems to me to have more civil libertarian leanings than Andrew Oldham and Edith Jones, the two more socially conservative justices in the NetChoice majority. While all six judges involved (incl NetChoice dissenting Judge Southwick) are appointed by the Republican Party, this is an area where right-of-center judges disagree among themselves.
Whatever the explanation for the discrepancy between the two Fifth Circuit rulings, I hope the Supreme Court will ultimately resolve the issue in favor of a clear rule banning government coercion on social media across the board.
NOTE: I am a former law clerk for the Fifth Circuit. But in these two cases I did not act as clerk for any of the judges on the jury.