A federal judge yesterday ordered the Biden administration to halt a wide range of communications with social media companies, siding with Missouri and Louisiana in a lawsuit (PDF) that alleges Biden and his administration violated the First Amendment by colluding with social networks “to suppress disfavored speakers, viewpoints, and content.” Ars Technica reports: The Biden administration argued that it communicated with tech companies to counter misinformation related to elections, COVID-19, and vaccines, and that it didn’t exert illegal pressure on the companies. The communications to social media companies were not significant enough “to convert private conduct into government conduct,” Department of Justice lawyers argued in the case. But Judge Terry Doughty, a Trump nominee at US District Court for the Western District of Louisiana, granted the plaintiffs’ request (PDF) for a preliminary injunction imposing limits on the Department of Health and Human Services, the National Institute of Allergy and Infectious Diseases, the Centers for Disease Control and Prevention, the Federal Bureau of Investigation, the Department of Justice, the US Census Bureau, the State Department, the Homeland Security Department, the Cybersecurity and Infrastructure Security Agency, and many specific officials at those agencies. The injunction also affects White House officials.
The agencies and officials are prohibited from communicating “with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms,” Doughty ruled. The injunction prohibits “specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.” Government agencies and officials are further barred from urging, encouraging, or pressuring social media companies “to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech.” The ruling also said the government may not coordinate with third-party groups, including the Election Integrity Partnership, the Virality Project, and the Stanford Internet Observatory, to pressure social media companies.
Doughty provided several exceptions that allow the government to communicate with social media companies about criminal activity and other speech that the First Amendment doesn’t protect. The Biden administration may continue to inform social networks about posts involving criminal activity or criminal conspiracies, national security threats, extortion, criminal efforts to suppress voting, illegal campaign contributions, cyberattacks against election infrastructure, foreign attempts to influence elections, threats to public safety and security, and posts intending to mislead voters about voting requirements and procedures. The US can also exercise “permissible public government speech promoting government policies or views on matters of public concern,” communicate with social networks “in an effort to detect, prevent, or mitigate malicious cyber activity,” and “communicat[e] with social-media companies about deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution.”