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Federal Government Improperly "Coerced" and "Significantly Encouraged" Certain Speech Restrictions by Social Media Platforms
In yesterday's decision in Missouri v. Biden, the Fifth Circuit (Judges Edith Clement, Jennifer Elrod, and Don Willett) held that the federal government violated the First Amendment by causing social media platforms to block posts on various topics (including "the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side-effects, election fraud, and the Hunter Biden laptop story").
The court acknowledged that the First Amendment doesn't bar social media platforms from acting on their own to restrict user speech, since the First Amendment applies only to the government and not to private parties (including large corporations). But the court concluded that the First Amendment may be violated "when a private party is coerced or significantly encouraged by the government to such a degree that its 'choice'—which if made by the government would be unconstitutional—'must in law be deemed to be that of the State.' This is known as the close nexus test."
As to what constitutes "significant[] encouragement by the government" to restrict speech, the court held:
For encouragement, we read the law to require that a governmental actor exercise active, meaningful control over the private party's decision in order to constitute a state action. That reveals itself in (1) entanglement in a party's independent decision-making or (2) direct involvement in carrying out the decision itself. In any of those scenarios, the state has such a "close nexus" with the private party that the government actor is practically "responsible" for the decision, because it has necessarily encouraged the private party to act and, in turn, commandeered its independent judgment.
As to what constitutes "coerc[ion]," the court held:
For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply…. [T]o help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit's four-factor test. Again, honing in on whether the government "intimat[ed] that some form of punishment" will follow a "failure to accede," we parse the speaker's messages to assess the (1) word choice and tone, including the overall "tenor" of the parties' relationship; (2) the recipient's perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences.
Each factor, though, has important considerations to keep in mind. For word choice and tone, "[a]n interaction will tend to be more threatening if the official refuses to take 'no' for an answer and pesters the recipient until it succumbs." That is so because we consider the overall "tenor" of the parties' relationship. For authority, there is coercion even if the speaker lacks present ability to act so long as it can "reasonably be construed" as a threat worth heeding.
As for perception, it is not necessary that the recipient "admit that it bowed to government pressure," nor is it even "necessary for the recipient to have complied with the official's request"—"a credible threat may violate the First Amendment even if 'the victim ignores it, and the threatener folds his tent.'" Still, a message is more likely to be coercive if there is some indication that the party's decision resulted from the threat. Finally, as for adverse consequences, the government need not speak its threat aloud if, given the circumstances, it is fair to say that the message intimates some form of punishment. If these factors weigh in favor of finding the government's message coercive, the coercion test is met, and the private party's resulting decision is a state action.
(Note that there is a good deal of caselaw on the coercion side, but much less on the significant encouragement side. Courts have suggested in the past that significant encouragement, even when it's not coercive, may implicate the government in the encouraged parties' decision. But the court cited few appellate cases to actually apply this to invalidate government action, and those struck me as quite different in the nature of the government action involved. In this respect, this case seems to set an important new precedent, unless it's overturned by the Supreme Court.)
Applying the tests, the court held "that the White House, acting in concert with the Surgeon General's office, likely … coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences":
Generally speaking, officials from the White House and the Surgeon General's office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective. But, the relationship between the officials and the platforms went beyond that. In their communications with the platforms, the officials went beyond advocating for policies, or making no-strings-attached requests to moderate content….
We start with coercion. On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content. Privately, the officials were not shy in their requests—they asked the platforms to remove posts "ASAP" and accounts "immediately," and to "slow[] down" or "demote[]" content. In doing so, the officials were persistent and angry. When the platforms did not comply, officials followed up by asking why posts were "still up," stating (1) "how does something like [this] happen," (2) "what good is" flagging if it did not result in content moderation, (3) "I don't know why you guys can't figure this out," and (4) "you are hiding the ball," while demanding "assurances" that posts were being taken down.
And, more importantly, the officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms' best interests to comply. As one official put it, "removing bad information" is "one of the easy, low-bar things you guys [can] do to make people like me"—that is, White House officials—"think you're taking action."
That alone may be enough for us to find coercion. Like in Bantam Books v. Sullivan (1963), the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General's office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials' demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive.
That being said, even though coercion may have been readily apparent here, we find it fitting to consult the Second Circuit's four-factor test for distinguishing coercion from persuasion. In asking whether the officials' messages can "reasonably be construed" as threats of adverse consequences, we look to (1) the officials' word choice and tone; (2) the recipient's perception; (3) the presence of authority; and (4) whether the speaker refers to adverse consequences.
First, the officials' demeanor. We find, like the district court, that the officials' communications—reading them in "context, not in isolation"—were on-the-whole intimidating. In private messages, the officials demanded "assurances" from the platforms that they were moderating content in compliance with the officials' requests, and used foreboding, inflammatory, and hyper-critical phraseology when they seemingly did not, like "you are hiding the ball," you are not "trying to solve the problem," and we are "gravely concerned" that you are "one of the top drivers of vaccine hesitancy." In public, they said that the platforms were irresponsible, let "misinformation [] poison" America, were "literally costing … lives," and were "killing people." While officials are entitled to "express their views and rally support for their positions," the "word choice and tone" applied here reveals something more than mere requests….
[M]any of the officials' asks were "phrased virtually as orders," like requests to remove content "ASAP" or "immediately." The threatening "tone" of the officials' commands, as well as of their "overall interaction" with the platforms, is made all the more evident when we consider the persistent nature of their messages. Generally speaking, "[a]n interaction will tend to be more threatening if the official refuses to take 'no' for an answer and pesters the recipient until it succumbs." Urgency can have the same effect. See Backpage.com v. Dart (7th Cir. 2015) (finding the "urgency" of a sheriff's letter, including a follow-up, "imposed another layer of coercion due to its strong suggestion that the companies could not simply ignore" the sheriff). Here, the officials' correspondences were both persistent and urgent. They sent repeated follow-up emails, whether to ask why a post or account was "still up" despite being flagged or to probe deeper into the platforms' internal policies. On the latter point, for example, one official asked at least twelve times for detailed information on Facebook's moderation practices and activities.
Admittedly, many of the officials' communications are not by themselves coercive. But, we do not take a speaker's communications "in isolation." Instead, we look to the "tenor" of the parties' relationship and the conduct of the government in context. Given their treatment of the platforms as a whole, we find the officials' tone and demeanor was coercive, not merely persuasive.
Second, we ask how the platforms perceived the communications. Notably, "a credible threat may violate the First Amendment even if 'the victim ignores it, and the threatener folds his tent.'" Still, it is more likely to be coercive if there is some evidence that the recipient's subsequent conduct is linked to the official's message…. Here, there is plenty of evidence—both direct and circumstantial, considering the platforms' contemporaneous actions—that the platforms were influenced by the officials' demands.
When officials asked for content to be removed, the platforms took it down. And, when they asked for the platforms to be more aggressive, "interven[e]" more often, take quicker actions, and modify their "internal policies," the platforms did—and they sent emails and assurances confirming as much. For example, as was common after public critiques, one platform assured the officials they were "committed to addressing the [] misinformation that you've called on us to address" after the White House issued a public statement.
Another time, one company promised to make an employee "available on a regular basis" so that the platform could "automatically prioritize" the officials' requests after criticism of the platform's response time. Yet another time, a platform said it was going to "adjust [its] policies" to include "specific recommendations for improvement" from the officials, and emailed as much because they "want[ed] to make sure to keep you informed of our work on each" change. Those are just a few of many examples of the platforms changing—and acknowledging as much—their course as a direct result of the officials' messages.
Third, we turn to whether the speaker has "authority over the recipient." Here, that is clearly the case. As an initial matter, the White House wields significant power in this Nation's constitutional landscape. It enforces the laws of our country, and—as the head of the executive branch—directs an army of federal agencies that create, modify, and enforce federal regulations…. At the very least, as agents of the executive branch, the officials' powers track somewhere closer to those of the commission in Bantam Books—they were legislatively given the power to "investigate violations[] and recommend prosecutions."
But, authority over the recipient does not have to be a clearly-defined ability to act under the close nexus test. Instead, a generalized, non-descript means to punish the recipient may suffice depending on the circumstances…. [A] message may be "inherently coercive" if, for example, it was conveyed by a "law enforcement officer" or "penned by an executive official with unilateral power." In other words, a speaker's power may stem from an inherent authority over the recipient. That reasoning is likely applicable here, too, given the officials' executive status.
It is not even necessary that an official have direct power over the recipient. Even if the officials "lack[ed] direct authority" over the platforms, the cloak of authority may still satisfy the authority prong….
True, the government can "appeal[]" to a private party's "interest in avoiding liability" so long as that reference is not meant to intimidate or compel. But here, the officials' demands that the platforms remove content and change their practices were backed by the officials' unilateral power to act or, at the very least, their ability to inflict "some form of punishment" against the platforms. Therefore, the authority factor weighs in favor of finding the officials' messages coercive.
Finally, and "perhaps most important[ly]," we ask whether the speaker "refers to adverse consequences that will follow if the recipient does not accede to the request." Explicit and subtle threats both work—"an official does not need to say 'or else' if a threat is clear from the context." Again, this factor is met.
Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President's office. The officials made inflammatory accusations, such as saying that the platforms were "poison[ing]" the public, and "killing people." The platforms were told they needed to take greater responsibility and action. Then, they followed their statements with threats of "fundamental reforms" like regulatory changes and increased enforcement actions that would ensure the platforms were "held accountable." But, beyond express threats, there was always an "unspoken 'or else.' After all, as the executive of the Nation, the President wields awesome power. The officials were not shy to allude to that understanding native to every American—when the platforms faltered, the officials warned them that they were "[i]nternally … considering our options on what to do," their "concern[s] [were] shared at the highest (and I mean highest) levels of the [White House]," and the "President has long been concerned about the power of large social media platforms." …
Given all of the above, we are left only with the conclusion that the officials' statements were coercive….
And the court held that the White House and the Surgeon General's office "also significantly encouraged the platforms to moderate content by exercising active, meaningful control over those decisions" by "entangl[ing] themselves in the platforms' decision-making processes, namely their moderation policies"—an independent basis, in the court's view, for treating the government's action as state action, even apart from coercion:
The officials had consistent and consequential interaction with the platforms and constantly monitored their moderation activities. In doing so, they repeatedly communicated their concerns, thoughts, and desires to the platforms. The platforms responded with cooperation—they invited the officials to meetings, roundups, and policy discussions. And, more importantly, they complied with the officials' requests, including making changes to their policies.
The officials began with simple enough asks of the platforms—"can you share more about your framework here" or "do you have data on the actual number" of removed posts? But, the tenor later changed. When the platforms' policies were not performing to the officials' liking, they pressed for more, persistently asking what "interventions" were being taken, "how much content [was] being demoted," and why certain posts were not being removed.
Eventually, the officials pressed for outright change to the platforms' moderation policies. They did so privately and publicly. One official emailed a list of proposed changes and said, "this is circulating around the building and informing thinking." The White House Press Secretary called on the platforms to adopt "proposed changes" that would create a more "robust enforcement strategy." And the Surgeon General published an advisory calling on the platforms to "[e]valuate the effectiveness of [their] internal policies" and implement changes. Beyond that, they relentlessly asked the platforms to remove content, even giving reasons as to why such content should be taken down. They also followed up to ensure compliance and, when met with a response, asked how the internal decision was made.
And, the officials' campaign succeeded. The platforms, in capitulation to state-sponsored pressure, changed their moderation policies. The platforms explicitly recognized that. For example, one platform told the White House it was "making a number of changes"—which aligned with the officials' demands—as it knew its "position on [misinformation] continues to be a particular concern" for the White House. The platform noted that, in line with the officials' requests, it would "make sure that these additional [changes] show results—the stronger demotions in particular should deliver real impact." Similarly, one platform emailed a list of "commitments" after a meeting with the White House which included policy "changes" "focused on reducing the virality" of anti-vaccine content even when it "does not contain actionable misinformation." Relatedly, one platform told the Surgeon General that it was "committed to addressing the [] misinformation that you've called on us to address," including by implementing a set of jointly proposed policy changes from the White House and the Surgeon General.
Consequently, it is apparent that the officials exercised meaningful control—via changes to the platforms' independent processes—over the platforms' moderation decisions. By pushing changes to the platforms' policies through their expansive relationship with and informal oversight over the platforms, the officials imparted a lasting influence on the platforms' moderation decisions without the need for any further input. In doing so, the officials ensured that any moderation decisions were not made in accordance with independent judgments guided by independent standards. Instead, they were encouraged by the officials' imposed standards.
In sum, we find that the White House officials, in conjunction with the Surgeon General's office, coerced and significantly encouraged the platforms to moderate content. As a result, the platforms' actions "must in law be deemed to be that of the State."
The court also found impermissible coercion and significant encouragement as to certain FBI requests:
We start with coercion. Similar to the White House, Surgeon General, and CDC officials, the FBI regularly met with the platforms, shared "strategic information," frequently alerted the social media companies to misinformation spreading on their platforms, and monitored their content moderation policies. But, the FBI went beyond that—they urged the platforms to take down content. Turning to the Second Circuit's four-factor test, we find that those requests were coercive. [Details omitted. -EV] …
We also find that the FBI likely significantly encouraged the platforms to moderate content by entangling themselves in the platforms' decision-making processes. Beyond taking down posts, the platforms also changed their terms of service in concert with recommendations from the FBI. For example, several platforms "adjusted" their moderation policies to capture "hack-and-leak" content after the FBI asked them to do so (and followed up on that request). Consequently, when the platforms subsequently moderated content that violated their newly modified terms of service (e.g., the results of hack-and-leaks), they did not do so via independent standards. Instead, those decisions were made subject to commandeered moderation policies.
In short, when the platforms acted, they did so in response to the FBI's inherent authority and based on internal policies influenced by FBI officials. Taking those facts together, we find the platforms' decisions were significantly encouraged and coerced by the FBI.
As to the CDC, the court held that, "although not plainly coercive, the CDC officials likely significantly encouraged the platforms' moderation decisions, meaning they violated the First Amendment":
We start with coercion. Here, like the other officials, the CDC regularly met with the platforms and frequently flagged content for removal. But, unlike the others, the CDC's requests for removal were not coercive—they did not ask the platforms in an intimidating or threatening manner, do not possess any clear authority over the platforms, and did not allude to any adverse consequences. Consequently, we cannot say the platforms' moderation decisions were coerced by CDC officials.
The same, however, cannot be said for significant encouragement. Ultimately, the CDC was entangled in the platforms' decision-making processes.
The CDC's relationship with the platforms began by defining—in "Be On the Lookout" meetings—what was (and was not) "misinformation" for the platforms. Specifically, CDC officials issued "advisories" to the platforms warning them about misinformation "hot topics" to be wary of. From there, CDC officials instructed the platforms to label disfavored posts with "contextual information," and asked for "amplification" of approved content. That led to CDC officials becoming intimately involved in the various platforms' day-to-day moderation decisions. For example, they communicated about how a platform's "moderation team" reached a certain decision, how it was "approach[ing] adding labels" to particular content, and how it was deploying manpower. Consequently, the CDC garnered an extensive relationship with the platforms.
From that relationship, the CDC, through authoritative guidance, directed changes to the platforms' moderation policies. At first, the platforms asked CDC officials to decide whether certain claims were misinformation. In response, CDC officials told the platforms whether such claims were true or false, and whether information was "misleading" or needed to be addressed via CDC-backed labels. That back-and-forth then led to "[s]omething more."
Specifically, CDC officials directly impacted the platforms' moderation policies. For example, in meetings with the CDC, the platforms actively sought to "get into [] policy stuff" and run their moderation policies by the CDC to determine whether the platforms' standards were "in the right place." Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC's guidance. As one platform said, they "were able to make [changes to the 'misinfo policies'] based on the conversation [they] had last week with the CDC," and they "immediately updated [their] policies globally" following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC's say-so—"[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them." That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.
Viewing these facts, we are left with no choice but to conclude that the CDC significantly encouraged the platforms' moderation decisions. Unlike in Blum v. Yaretsky (1982), the platforms' decisions were not made by independent standards, but instead were marred by modification from CDC officials. Thus, the resulting content moderation, "while not compelled by the state, was so significantly encouraged, both overtly and covertly" by CDC officials that those decisions "must in law be deemed to be that of the state."
But the court concluded that, as to the National Institute of Allergy and Infectious Diseases, the State Department, and the Cybersecurity and Infrastructure Security Agency, "there was not, at this stage, sufficient evidence to find that it was likely these groups coerced or significantly encouragement the platforms":
For the NIAID officials, it is not apparent that they ever communicated with the social-media platforms. Instead, the record shows, at most, that public statements by Director Anthony Fauci and other NIAID officials promoted the government's scientific and policy views and attempted to discredit opposing ones—quintessential examples of government speech that do not run afoul of the First Amendment….
As for the State Department, while it did communicate directly with the platforms, so far there is no evidence these communications went beyond educating the platforms on "tools and techniques" used by foreign actors. There is no indication that State Department officials flagged specific content for censorship, suggested policy changes to the platforms, or engaged in any similar actions that would reasonably bring their conduct within the scope of the First Amendment's prohibitions. After all, their messages do not appear coercive in tone, did not refer to adverse consequences, and were not backed by any apparent authority. And, per this record, those officials were not involved to any meaningful extent with the platforms' moderation decisions or standards.
Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the "attempts to convince," not "attempts to coerce," side of the line. There is not sufficient evidence that CISA made threats of adverse consequences—explicit or implicit—to the platforms for refusing to act on the content it flagged. Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests—although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA's requests or that any such moderation was done subject to non-independent standards….
The court "emphasize[d] the limited reach of [its] decision":
We do not uphold the injunction against all the officials named in the complaint. Indeed, many of those officials were permissibly exercising government speech, "carrying out [their] responsibilities," or merely "engaging in [a] legitimate [] action." That distinction is important because the state-action doctrine is vitally important to our Nation's operation—by distinguishing between the state and the People, it promotes "a robust sphere of individual liberty." … If just any relationship with the government "sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities." So, we do not take our decision today lightly.
But, the Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life. Therefore, the district court was correct in its assessment—"unrelenting pressure" from certain government officials likely "had the intended result of suppressing millions of protected free speech postings by American citizens."
And the court held that the district court injunction was overbroad:
[Parts of the injunction] prohibit the officials from engaging in, essentially, any action "for the purpose of urging, encouraging, pressuring, or inducing" content moderation. But "urging, encouraging, pressuring" or even "inducing" action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement….
[Certain other] provisions likewise may be unnecessary to ensure Plaintiffs' relief. A government actor generally does not violate the First Amendment by simply "following up with social-media companies" about content-moderation, "requesting content reports from social-media companies" concerning their content-moderation, or asking social media companies to "Be on The Lookout" for certain posts….
These provisions are vague as well. There would be no way for a federal official to know exactly when his or her actions cross the line from permissibly communicating with a social-media company to impermissibly "urging, encouraging, pressuring, or inducing" them "in any way." …
Finally, [one other] prohibition—which bars the officials from "collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group" to engage in the same activities the officials are proscribed from doing on their own—may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, and "exceeds the scope of the parties' presentation." …
That leaves [one remaining provision], which bars the 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, 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….[It] is MODIFIED to state:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies' decision-making processes.
Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform's content-moderation decisions. Such conduct includes threats of adverse consequences—even if those threats are not verbalized and never materialize—so long as a reasonable person would construe a government's message as alluding to some form of punishment. That, of course, is informed by context (e.g., persistent pressure, perceived or actual ability to make good on a threat). The government cannot subject the platforms to legal, regulatory, or economic consequences (beyond reputational harms) if they do not comply with a given request. The enjoined Defendants also cannot supervise a platform's content moderation decisions or directly involve themselves in the decision itself. Social-media platforms' content-moderation decisions must be theirs and theirs alone. This approach captures illicit conduct, regardless of its form….
Note that, when a court of appeals strikes down a federal statute, and the federal government then asks the Supreme Court to review the matter, the Court is very likely to say yes. The Court's view is that the judiciary may properly tell Congress that it can't do something—but if that's done, that should be the province of the Supreme Court, and not one of the lower courts. I expect the Justices would take the same view of an injunction that orders the President not to do things; if the Solicitor General seeks review by the Court, the Court is likely to agree to hear the matter.
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So how long would it (roughly) take to get to the Supreme Court for a decision?
If the federal government seeks Supreme Court review very quickly, then the Court could decide whether to grant review within the next few months. If the Court says yes, then the case could be heard early next year, and decided by late June 2024.
What’s “very quickly”?
Thank you!
Eugene – your article states that when a court strikes down a federal statute , then the SC will very likely take the case if the executive branch seeks review.
However, it would appear that this is a case of improper behavior of federal agencies instead of striking down a federal statute.
Right; but, as the post noted, “I expect the Justices would take the same view of an injunction that orders the President not to do things” as they would as to a court order that strikes down a Congressionally enacted statute. Each order by a lower court restricts the actions of a coordinate branch of government; that sort of split among the branches seems likely to be seen as a justification for the Court to step in.
Shouldn’t they go for en banc review first probably?
” I expect the Justices would take the same view of an injunction that orders the President not to do things; if the Solicitor General seeks review by the Court, the Court is likely to agree to hear the matter.”
Almost everything the executive branch does is presumed to be based on SOME statute, because outside of a few reserved powers, seeing that the law (Statutes!) is faithfully executed is the whole basis for the “executive” branch to claim any authority over people at all.
So, if they’re doing something that would be unconstitutional if Congress actually had enacted a statute directing them to do it, it’s unconstitutional even if you can’t identify such a statute…
Bellmore, what makes you suppose it is constitutional for a court to tell the the administration what it can or cannot say about counter-measures it deems necessary to control a deadly public health emergency?
It can say whatever it likes about countermeasures. It can’t coerce private platforms into suppressing speech, though.
DavyC, my assertion was about the power of a court to control government speech. You changed the subject to government powers to control private publishers, and then neglected to mention that 1A press freedom already bars the government from doing what you think it should not do. Because judges are sworn to protect the Constitution, the power you imagine government might have to control private platforms is not in fact a realistic threat. Private publishers remain at liberty to defy government threats of coercion, and can rely on courts to intervene against government if any serious coercion is ever attempted—which almost never happens.
Since the early 19th century, probably the most serious government threat to publishing freedom was the threat against The Washington Post and the New York Times to charge them with espionage for publishing the Pentagon Papers. The publishers defied that, and the Supreme Court decided for the publishers. I am unaware of anything comparable since.
It is possible that you are confused because you imagine internet contributors are publishers. They are not typically publishers; they typically do not practice publishing activities, and mostly could not accomplish publication without the agency of an actual publisher which does practice those activities—which is what the platforms are.
There is no constitutional right which a would-be contributor to a publication enjoys to force a private publisher to publish the contributor’s stuff. Government has no legitimate power to force publishers to do that. Courts are sworn to protect 1A press freedom, which means the courts must back the publishers against threats to coerce them, including threats to coerce them on behalf of frustrated would-be contributors whom the publishers have declined to publish.
Threatening to abolish section 230, which would lead to hundreds of billions of dollars in stock value loss, as their business model collapses and is heavily modified under lawsuits and threats of same, is no tiny, ineffectual arm twisting. This was loud and out in the open and deliberate.
Once the mafia thug enters, pawing section 230 unless you play ball, other requests are no longer independent, either.
The 5th Circuit did not join you in this reasoning, which remains utterly ignorant of government-industry interactions.
Krayt, Section 230 is not some constitutional right. It is a law which mandates a government policy. If Congress decides to do it, it can change that law, and choose a different policy. No court has legitimate power to interfere if Congress does that.
“Bellmore, what makes you suppose it is constitutional for a court to tell the the administration what it can or cannot say about counter-measures it deems necessary to control a deadly public health emergency?”
Lathrop, you seem unclear about the whole theory of judicial review.
When the government acts, court hearings loom in the background. Either it goes to court to enforce its orders, or is taken to court by somebody who doesn’t want to knuckle under to them.
At that point, if the law an action is based on has been declared unconstitutional, or the action is just ultra vires, the court rules against the government.
Now, it’s true that the Supreme court doesn’t have many battalions. So I guess the government could just say, “Screw the courts, we’ll simply shoot anybody who doesn’t obey, and the judges, too, if they complain.”
But most people think that’s a bit far to go, so the government tends to stop doing things the courts have declared unconstitutional.
Never-Trumpers, Covid idiots, and supporters of Joe, Jim, and Hunter Biden’s crimes will suffer greatly should this ruling be allowed to stand.
Surely SCOTUS will take up the issue and rule that of course the First Amendment does not mean that government can’t direct private companies in censoring speech to which governmental agencies disagree. The First Amendment only states that Congress can’t make laws to suppress speech. It say’s nothing about agencies created by Congress.
sarcasm?
Honestly, I can’t tell.
What difference, at this point, does it make?
CindyF, I wouldn’t call you a “covid idiot.” That seems unfairly limiting of the spectrum of your idiocy.
First, are we going to apply this same loose standard of coercion v “just asking questions” to Trump, Graham, et al calls to state election officials?
Second, WAPO’s headline misrepresents the story. The Trumpy Fifth Circuit threw out 95% of the Trumpy lower court judge’s ruling. He listed ten specific restrictions on ten agencies. The Fifth threw out everything except one restriction on four agencies. And that is just boilerplate that they can’t restrict protected speech. Duh. Many above are wondering how the Supremes will rule on appeal. I wonder if the Feds will bother to appeal.
This ain’t exactly a victory for election lies and Ivermectin.
The point just wizzed right by your political preconception.
And yes, this standard should be applied both ways. And it sure seems like it is. Trump and his posse didn’t rack up all those indictments by not threatening Georgia officials.
Threaten them with what?
bevis, threatened Georgia officials would have been in a less vulnerable position had they been private publishers instead of officials.
To the contrary, they would have been in more of a vulnerable position if they were private publishers.
“The Fifth threw out everything except one restriction on four agencies.”
How many agencies are supposed to be censoring social media posts?
Zero agencies have power to censor social media posts.
Os coercion a crime?
Coercion is part of certain crimes, pertaining to consent…but it necessarily has a much narrower meaning in criminal contexts compared to civil/constitutional cases. (Otherwise, offering a desperate person a crummy but otherwise legal job opportunity could be deemed forced labor, for example…)
A nuanced and well-considered opinion, although I’m inclined to think the trial court must have been off the rails. This is one of those times when I don’t like the outcome in the instant case but I think it’s an important line to hold for when the other guys are in power.
Another three-clinger special from a circuit in America’s half-educated*, superstitious, can’t-keep-up backwaters.
* Check the “states ranked by educational attainment” rankings to observe how ignorant, in general, the Fifth Circuit’s citizenry is.
Actually it’s precisely what the constitution requires, while being nuanced and restrained enough to recognize that most of the trial court judge’s injunctions went too far.
Third, we turn to whether the speaker has “authority over the recipient.” Here, that is clearly the case. As an initial matter, the White House wields significant power in this Nation’s constitutional landscape. It enforces the laws of our country, and—as the head of the executive branch—directs an army of federal agencies that create, modify, and enforce federal regulations…. At the very least, as agents of the executive branch, the officials’ powers track somewhere closer to those of the commission in Bantam Books—they were legislatively given the power to “investigate violations[] and recommend prosecutions.”
It’s as if the 5th circuit thinks First Amendment press freedom does not exist. In fact, there are no laws against publishing disfavored political content for the government to enforce. Short of tightly circumscribed political crimes—notably treason—the nation’s constitutional landscape shows no features empowering the White House to punish political speakers at all.
There is no threat here. Publishers remain free to defy the government, laugh at any officials pressuring the publishers, and to publish stories ridiculing whatever officials they think are attempting to apply unconstitutional pressure to control content. Conversely, publishers remain free to agree with government-demanded content, including content offered belligerently by misguided officials, and to publish that content if it pleases publishers to do so. Publishers can do either of those things for any reason, or for no reason. That is what press freedom means.
Except for the implication that the 5th Circuit judges think they enjoy power to stifle government speech the judges disapprove, this is a nothing burger. That illegitimate threat from the court against the government is the part of this discussion which deserves emphasis.
No, there’s no law directly allowing them to punish political speakers. But there are all sorts of random laws that are enforced on a discretionary basis. An antitrust investigation would be a serious headache for any company, for example.
When someone says the equivalent of “Nice place you’ve got here, shame if anything were to happen to it” the courts are allowed to take that as coercion.
The bigger one, I think, was the Administration’s repeated questioning of these media company’s CDA § 230 Safe Harbor protections. Of course, their heavy handed censoring of the Administration’s critics here should have been sufficient for that. They were exerting serious editorial control. Nevertheless, I remember, at the time, that the Administration and Dem leaders i Congress were fairly heavy handed in regard to § 230, and without that Safe Harbor, their business plan would be DOA.
There is no constitutional right to Section 230. It is a privilege which Congress enacted on behalf of some publishers, but not others. It was well intentioned when enacted, but poorly thought through. It has turned out to be a blunder which promoted platform giantism, encouraged defamation and various kinds of fraud, including election frauds, and undermined news gathering nationwide. A privilege which Congress was free to extend another congress remains free to withdraw.
Hypothetical: President Pence writes letters to all major American broadcast companies imploring them to air Christian religious services on Sundays, and says explicitly that any who do not will have their broadcast licenses reviewed and, if possible for any valid reason, revoked. A constitutional violation?
If you agree that it is, then your post is wrong and it is possible for the executive to coerce media. The question then becomes where that line is drawn, in which case you must address specifics of the opinion, rather than generalities.
If you agree that it is, then your post is wrong and it is possible for the executive to coerce media.
Nonsense. Hypothetical President Pence has no such power, and everyone knows it. If he tried it, he would lose in court.
The best choice for a publisher facing any such threat is to defy it, publicly. Then publish stories about the threat. That will both inform the public and improve the reputation of the publisher. Which is exactly what happed when the Washington Post, (and others) defied serious government threats during the Pentagon Papers incident.
Threats against publishers do not get any more dire than the one the Post faced down. There is a movie about it. You could watch it for entertainment.
> Hypothetical President Pence has no such power
Under your theory, he absolutely has such power. His letter cannot be coercive, and the FCC has enough discretion in determining violations that it’s likely to find something if it tries. They could sue for retaliation after their license is yanked, but suing a sitting President is really hard and would potentially add years to litigation. If they lose at the PI stage, it’s all over.
Now the same hypo, but a small nonprofit newsletter that can’t afford litigation at all.
But you’ve staked out your position: It’s impossible for the might of the state to intimidate the press in any legal sense. Your stupid, stupid position.
Drewski, of course it is possible for the state to intimidate a private publisher. Such a publisher may be temperamentally susceptible, and lose sleep at night because a mean government official with zero legal basis for doing so made some kind of actual threat. That kind of publisher probably deserves whatever sorry fate his timidity and irresponsibility expose him to.
Smart publishers, who want to win public confidence and grow their businesses, will understand that any such threat is a rare gift, a news opportunity akin to winning the lottery. They will defy the threat, and publish follow-up stories ridiculing for incompetence any government officials who back action to make illegal threats against publishers.
Such publishers will not whine. They will not complain about expense (nor suffer any more of it than the cost of resources necessary to publish their responses). They will betray not the least sign of concern that such a threat could ever be entertained by the public, or win the approval of a court.
Shortly, a threat treated that way will cease to be a problem. Legal action will not be required. The official who made the threat may also be gone, or perhaps merely suffer the chagrin of having badly damaged his/her own career.
The only requirement necessary to get such a good result is an ability to discern the difference between a real threat, and a government official’s permissible critique of a publisher. A publisher who makes a fool of himself by whining in public about mere government criticism cannot expect the backing even of his own audience. Of course most publishers will never be lucky enough to have a government official make a real threat against them. It almost never happens. But being publishers, they need not suffer government criticism in silence.
We will probably see this listed in the impeachment charges. Biden directed officials to violate Americans’ first amendment rights.
I think this ruling gives media companies some ammunition if they WANT to push back against government coercion, but it does little to dismantle the Disinformation-Industrial Complex itself — especially if there’s a good old boy network between the government and media.
It definitely makes it easier to sue the Feds for something like this though.
Elon should sue the DOJ for speech retaliation for the DOJ’s ridiculous SpaceX employment case.
Hm. Totally pyrrhic. They’re enjoined from doing illegal things, eh? I sort of think the DoJ should just not appeal this.
I don’t think you’re entirely clear on what a “pyrrhic victory” is. If a party bankrupts themselves to win, that would be an example. The phrase you were looking for is “hollow victory,” but you’re wrong anyway.
Ignoring the somewhat philosophical question of whether it’s a victory at all (they got a preliminary injunction at trial which was drastically narrowed here), the point of the injunction is that the administration disagrees that what it was doing is illegal and intended to continue until forbidden from doing so. This prevents that until the merits are heard (and I think this opinion correctly predicts the merits, assuming the facts are as alleged).
I’m not so sure the administration does intend to continue the specific things called out by the 5th circuit, which seem to be all about “tenor or tone.” It’s definitely not a good look to be badgering social media to censor people. Since it’s ineffective anyway, they might be better off just changing their approach to a more cordial one and leaving this precedent to the fifth circuit rather than risk cementing it with this court.
They should at least ask for an en banc rehearing though.
“Nice little social media platform ya got there. Be a shame if something were to happen to it.”
Coercion? Nah.