In July, Terry Doughty, a federal judge in Louisiana, ruled that discussions between the federal government and social-media platforms as to what content they should or shouldn’t allow—around the efficacy of COVID vaccines, for example—constituted an attempt to coerce the platforms, and as such were a violation of the First Amendment’s protection against government interference in speech. Indeed, Doughty described this kind of conduct as the “most massive attack against free speech in United States’ history.” He ordered officials from a range of government agencies to stop talking to tech companies about content moderation, and also prohibited these officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” certain academics whose work focuses on social media.
As I explained at the time, the allegation that the government has colluded with social media companies to censor speech is not new; in the case in which Doughty ruled, the attorneys general of Louisiana and Missouri argued that officials had begun a “systematic campaign” to control speech on social media as early as 2017. The federal government subsequently appealed Doughty’s ruling, arguing that in talking with the social platforms, officials were merely trying to promote “responsible actions to protect public health, safety, and security.” Two weeks ago, the case moved forward again: the Court of Appeals for the Fifth Circuit agreed with Doughty that the White House, the surgeon general, the Centers for Disease Control and Prevention, and the FBI coerced the platforms into suppressing speech, and that this was a violation of the First Amendment.
Although the appeals court upheld the general thrust of Doughty’s decision, however, it didn’t agree with a number of the restrictions that he imposed. Of the ten specific prohibitions on government behavior, the Fifth Circuit threw out nine as being too broad, and modified the tenth, according to the Washington Post, limiting it to efforts to “coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce… posted social-media content containing protected free speech.” The appeals court also said that Doughty erred by including the State Department and a number of other agencies in his injunction, when there was no evidence that they had coerced any platforms.
Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer
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