Outside the Beltway

Biden Administration Overstepped Bounds on Social Media Pressure

The 5th Circuit upholds a lower court ruling but narrows its scope considerably.

James Joyner · Saturday, September 9, 2023 · 8 comments

Dueling headlines via Memeorandum this morning.

• NYT: “Appeals Court Rules White House Overstepped 1st Amendment on Social Media” subhed: “A Fifth Circuit panel partly upheld restrictions on the Biden administration’s communications with online platforms about their content.”
• WaPo: “5th Circuit finds Biden White House, CDC likely violated First Amendment” subhed: “The three judge panel found that contacts with tech companies by officials from the White House, the surgeon general’s office, the CDC and the FBI likely amounted to coercion“
• CNN: “Appeals court says Biden admin likely violated First Amendment but narrows order blocking officials from communicating with social media companies” (no subhed)

Given that most people just glance at the headline without diving deeper, readers of both NYT and WaPo would have gotten the correct impression that the Biden administration overstepped its bounds on free speech matters. NYT readers would have gotten the additional information that it had something to do with social media. CNN’s headline is terrible from a pithiness standpoint. On the other hand, it more accurately conveys the ruling.

The body of the CNN piece begins:

A federal appeals court on Friday said the Biden administration likely violated the First Amendment in some of its communications with social media companies, but also narrowed a lower court judge’s order on the matter.

The US 5th Circuit Court of Appeals ruled that certain administration officials – namely in the White House, the surgeon general, the US Centers for Disease Control and Prevention, and the Federal Bureau of Investigation – likely “coerced or significantly encouraged social media platforms to moderate content” in violation of the First Amendment in its efforts to combat Covid-19 disinformation.

But the three-judge panel said the preliminary injunction issued by US District Judge Terry Doughty in July, which ordered some Biden administration agencies and top officials not to communicate with social media companies about certain content, was “both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture.”

The Biden administration had previously argued in the lawsuit brought by Republican attorneys general claiming unconstitutional censorship that channels with social media companies must stay open so that the federal government can help protect the public from threats to election security, Covid-19 misinformation and other dangers.

In briefs submitted earlier this summer, the administration wrote, “There is a categorical, well-settled distinction between persuasion and coercion,” adding that Doughty had “equated legitimate efforts at persuasion with illicit efforts to coerce.”

The 5th Circuit left in place part of the injunction that barred certain Biden administration officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.”

“But,” the appeals court said, “those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.”

The appeals court reversed several aspects of Doughty’s sweeping order, concluding that those pieces of it risked blocking the federal government “from engaging in legal conduct.”

The WaPo and NYT reports themselves are substantially the same.

I addressed the earlier ruling in my July 6 post “Disinformation and Free Speech.” While I am not a lawyer, my take was remarkably similar to the 5th Circuit’s:

[A]side from the fact that the judge is a Trump appointee, this strikes me as perfectly reasonable. While government officials have a role in coordinating against foreign agitprop and illicit speech (promoting criminal activity, including terrorism), attempts to strongarm social media companies to remove “disinformation” coming from US citizens is worrisome. While I’m more comfortable with the Biden (or any “normal”) administration doing it than I would have been under Trump, I’m pretty close to a free speech absolutist and “suggestions” or “advice” from regulators could easily have a chilling effect.

[…]

This, on the other hand, seems sloppy and overbroad.

[excerpt from Doughty’s ruling]

Some activities by “domestic extremists” (criminal conspiracy, incitement to violence, harassment) are not protected speech and presumably falls outside the order. Quite a lot (mere repugnant utterances), though, is.

[…]

It seems obvious just from the AP report that the order was sloppily written and overbroad. Beyond that, my standard lament about mere district judges—who are easily jurisdiction-shopped—having the power to issue national injunctions also applies. We really should require these cases to be filed in the DC Circuit.

The administration had reasonable concerns about the spread of disinformation regarding COVID on social media and I have no issue with them having discussions with the leadership of information platforms on how to go about combatting it. But, as with Medicare “negotiating” with drug companies, there’s a fine line between discussion and coercion when one end of the conversation has regulatory power over the other.