With rare exceptions, the right to free speech is exceptionally broad. Exceptions focus on imminent and irremediable harm, like shouting fire in a crowded theater or child pornography. You are even allowed to lie – as long as no one’s reputation is injured. But what if the feds want to constrain those attacking government actions because those attacks are dangerous and endanger public health? The Fifth Circuit said no go. The Supreme Court weighs in this March.
To publish as you please?
On the health law platter for the Supremes next month is the State of Missouri et al. v. Biden et al. on appeal from the 5th Circuit, which addresses whether the federal government can rein in social media’s parade of contentious antivax and anti-mask COVID communications. Renamed Murthy v. Missouri for its sashay before the Supreme Court, the matter is billed as a free speech case, supposedly determining whether Covid misinformation and disinformation are protected speech under the First Amendment. Yet, in its 74-page decision, the 5th Circuit barely considered the type of speech involved, never confronting whether disseminating harmful misinformation during an emergency warrants a carve-out from the Holy Grail of First Amendment protection.
Instead, the opinion focuses on evaluating how much pressure the feds can exert on private entities or individuals – who have no First Amendment obligations not to infringe free speech – before the pressure shifts from persuasion (allowed) to coercion (prohibited). There’s lots at stake: The case will determine permissible federal powers to restrict harmful misinformation by third parties during a future emergency.
The Case
The lawsuit was initiated by the states of Missouri and Louisiana, who were miffed at social media for messing with their messages and mangling their ability to monitor (some would say “pander to”) concerns of their citizens and who were seeking to
“build a wall of separation between tech and state to preserve our First Amendment right to free, fair, and open debate.”
These parties cannot sue on First Amendment grounds, as “the First Amendment does not confer rights on State[s],” although the 5th Circuit ruled that a “State does have a right to speak on its own behalf.” Nevertheless, five individual activists were added, [1] all claiming improper censorship for violating their right to publish as they please on social media.
Private entities, such as large social media companies, are not obligated to allow the use of their sites to whoever wishes or to comply with the First Amendment. A First Amendment obligation, however, does lie with the Federal Government. However, in this case, there was no direct connection between the federal government and the plaintiffs. Needing a hook to hobble future federal actions and sustain their censorship claim, the plaintiffs contend that the federal government was the puppeteer behind the platforms’ decisions to muzzle their anti-vax and anti-lockdown posts.
To cement their claim, the plaintiffs allege that the feds pressured, coerced, threatened, intimidated, and/or strongly encouraged the platforms, which, in turn, sealed their misinformation spigots. By contrast, federal officials argue that they:
“only ‘sought to mitigate the hazards of online misinformation’ by ‘calling attention to content' that violated the ‘platforms’ policies,’ a form of permissible government speech.”
The 5th Circuit noted that the federal government contacted every major social media platform during the height of COVID, although they only discuss four: Facebook, Twitter (now known as “X”), YouTube, and Google. These private companies, with no legal burden to refrain from impinging on free speech, are not named as parties. Nor did they object to federal “pressure,” mostly accommodating federal policy without objection. Without objective proof, the plaintiffs claim the platforms’ acquiescence wasn’t voluntary.
“Modern technology companies have enabled misinformation to poison our information environment, with little accountability to their users.”
The plaintiffs paint a scenario of persistent and pervasive federal involvement, with allegedly illicit actions committed by the White House, FBI, Surgeon General, CDC, Cybersecurity and Infrastructure Security Agency (CISA), Census Bureau, National Institute of Allergy and Infectious Diseases (NIAID), and Departments of State, Justice, Commerce, Health and Human Services, Homeland Security—all advocating that public health misinformation on social media harms the populace.
The question before the court was not whether the feds can ban content produced by the activists; everyone agrees that is verboten. The seminal issue is whether federal communications (emails and meetings) were coercive or strongly encouraged content-related social media decision-making, which is not allowed. The feds are allowed, however, to persuade, encourage, shape, or influence content moderation by social media – within limits. The issue is where the line gets drawn and who gets to draw it.
“Where we draw that line, though, is the question before us today.”
Acknowledging the fuzzy, “nuanced,” and difficult-to-distinguish line between coercion (forbidden) and persuasion (allowed), in order “to differentiate ’attempts to coerce’ from ‘attempts to convince’” courts focus on four, essentially psychological, factors:
- the speaker’s “word choice and tone,”
- whether the speech was perceived as a threat by the recipient,
- the presence of regulatory authority, including whether it is reasonable to fear retaliation,
- whether the speaker refers to adverse consequences.” (e.g., threat of punishment or referral to the US Attorney General’s office, none of which existed here.
Instead, in making its ruling, the 5th Circuit highlights governmental actions and consequences concerning:
- what “interventions” were taken,
- how much content was demoted (revised or deleted),
- what “misinformation” was not downgraded,
- Governmental oversight curtailing “dubious” or “sensational” content.
While the government occasionally employed peremptory but toothless time-imperatives, social media outfits had no problems complying. There was no pushback, objections, lawsuits, or requests for delay. They did what was asked. And more:
“[One] …platform told the Surgeon General that ‘[w]e’re …committed to addressing the … misinformation that you’ve called on us to address…., the platforms obliged—they were “keen to amplify any messaging you want us to project,’ i.e., “the right messages.”
The Court ignored objective assessment of the psychological impact of governmental interventions on the platforms, instead construing their voluntary acquiescence as evidence of coercion, making a subjective determination of their collective state of mind.
“The platforms were apparently eager to stay in the officials’ good grace,” [emphasis added] - 5th Circuit Court of Appeals
To prove Social Media’s perceived coercion, the court interpreted social media’s decisions as evidence they “felt” threatened. Even without explicit threats, the court found the government was “subtly insinuating [that] it would be in the best interest of the platforms to comply,” agreeing with the “plaintiffs’ theory that the social-media platforms’ censorship decisions were likely attributable at least in part to the platforms’ reluctance to risk the adverse legal or regulatory consequences that could result from a refusal to adhere to the government’s directives.”
Nor would the absence of explicit threats or adverse consequences have availed the FBI and the White House or protected their actions. As the Court states, “the inherent authority of the President’s office,” or the mere cloak of authority, may override niceties in tone,” indicating any request, no matter how benignly framed, would be considered coercive merely by virtue of its author.
Are Google and Facebook, by definition, “non-coercible”?
Evidence of collaboration between social media and the government was also held to constitute coercion or capitulation.
“When there was doubt, [social media]… met with the officials, tried to “partner” with them, and assured them that they were actively trying to “remove the most harmful COVID-19 misleading information. At times, their responses bordered on capitulation.”
Coercion? Capitulation? Google? Facebook?
America's largest and most influential companies are continually enmeshed and embroiled in multiple major legal altercations with the government, routinely risking humongous fines and penalties without batting a corporate eyelash. Google is being sued for monopolistic practices by the Department of Justice and dozens of states “in what legal scholars call the biggest antitrust trial since the government’s 1990s case against Microsoft.” They aren’t blinking. Neither does Facebook seem intimidated, even after being saddled with a five billion dollar penalty by The Federal Trade Commission. As for Elon Musk and X, he doesn’t seem intimidated by anything.
An alternative characterization of acquiescence might well be considered “public spiritedness,” as attempted by Zuckerberg in his recent Congressional apology – or perhaps better PR.
The plaintiffs do not seek to punish past governmental actions. They want to enjoin any future federal interference with social media. Yet, even as the plaintiffs argue that the federal government shouldn’t influence their activities (via social media), they want to enjoin federal actions that are protective of public health. The 5th Circuit granted broad injunctive relief. Now, the matter rests with the Supremes.
[1] The conservative-leaning Fifth Circuit Court of Appeals introduces the case by upgrading the credentials of the individual plaintiffs, referred to as “three doctors, a news website, a healthcare activist.” In reality, one of those physicians ostensibly isn’t licensed to practice medicine in the US; one is an academic psychiatrist, and one is a biostatistician who didn’t attend medical school. The website Gateway Pundit is represented by its editor, Jim Hoft. Independent of this matter, “Hoft was banned from Twitter last year after repeatedly promoting falsehoods about the 2020 presidential election. He is also in regular hot water with Facebook and YouTube.” The activist, Jill Hines, is affiliated with Health Freedom Louisiana, an advocacy group working against vaccine mandates.
