Cybertoonz explains the government's right to speak

And why government communications to social media about content moderation shouldn't be enjoined

There's already a tangled legal history to the Biden administration's aggressive campaign aimed at persuading social media companies to restrict certain messages and ban certain speakers. Judge Doughty issued a sweeping injunction against the government. The Fifth Circuit gave Judge Doughty's order a serious haircut but left its essence in place. Still unsatisfied, the Solicitor General obtained a further stay from the Supreme Court.

All in all, several hundred pages of legal talk about the US government's right to call on social media to suppress speech.

As a public service, Cybertoonz has reduced the entire controversy to four panels.

(Note: Based on legitimate criticism of the original, I've substituted a different set of cartoons, also created on Bing Image Creator.)

Comments

[Jacob Grimes]

It took me a few readings to get this because the second panel is reflected as if it portrays the opposing counsel and has a different-looking attorney with no microphone. But I guess if you used the same four frames for one person talking, it wouldn't be much of a comic.

[dwb68]

I dont get it, and the cartoon message seems at odds with the subtitle, “And why government communications to social media about content moderation shouldn’t be enjoined.” Are these all the same lawyer talking, who is talking the blue text???

The subtitle of the cartoon should be “why lawyers should be enjoined from making cartoons.”

Government censorship of speech is not free speech, LMAO unless you are big brother. The government has no business de-platforming viewpoints.

[Stewart Baker]

Sadly, I fear that Cybertoonz will need to rethink this use of Bing's image AI. The prompt requested several panels of the same lawyer making an oral argument, and the AI was clearly trying, using very similar elements, but the dissimilar hair and features were more important to humans than to the AI.

[dwb68]

ok, but a bad carpenter always blames the tools. If the AI is confusing... dont publish it.

[Roger S]

The cartoon is clear enough. Cartoons often have frames with the same person talking. Someone else, probably a judge, responds in the third frame.

[dwb68]

frames 1 and 4 could be the same person, except they are facing opposite sides. Frames 1,2,3 are different attorneys, with different hair and different color ties. The podiums are different too, with different molding.

Apparently these are all supposed to be the same lawyer. I think the joke may be the government arguing with itself??

[Stephen Goldstein]

I've no doubt that the Government has as much right to speak as a private citizen which is to say, for example, if a private citizen speaks out, in public, against a vaccine mandate, the Government has a right to offer a public rebuttal to any assertions made by the citizen.

Indeed, IMO, the Government in its public rebuttal would even be permitted, as depicted in the cartoon, to say something along the lines of, "You're wrong. It's harmful to write what you wrote. You should just SHUT UP!"

But the Government is not permitted to have a private conversation with the social media host to coerce the host to silence the original speaker. Government "speech" of that sort qualifies as censorship and/or prior constraint which is prohibited by the 1st Amendment.

Anyway, that's what I think.

[Krayt]

There’s “regulation by raised eyebrow”, where government ponders something loudly that it can’t have directly, like a girl in a field hoping some boy loves her, while “Wouldn’t it be nice…” starts playing on the radio, and they rattle the drawer of potential new regulations.

Then there’s its big brother, where they threaten hundreds of billions of dollars in stock valuation loss by crushing the social media companies’ business model by wiping section 230, introducing lawsuits and many restrictive changes to avoid same, if they don’t play ball.

There is no raised eyebrow and intimation here, just loud, out in the public threats. The 2016 Democratic debate had a discussion unit on it, where they fell all over thenselves trying to one up each other on the nastiness of the attacks on these private, speaking organizations. The Republicans threatened the reverse, to clobber 230 if the private companies bent the knee to the Democrats.

Of course government recommends stuff, we expect it to. But in the context of the past decade, disinterested, detached recommendations aka behavior of government is a joke.

[Drewski]

I agree with a caveat: The courts need to be consistent about what's coercive. Even better if they're also correct. At the moment, a cop aggressively seeking permission to search while holding someone at literal gunpoint is not coercive but an email to a corporate lawyer about one of their customers from a cop is coercive.

[Lawperson5000]

The government has worked with media for ages -- usually in the context of national security. The government often asks major media to embargo stories regarding military operational details or stories that could reveal intelligence sources or put people in danger. The media often complies with these request. I am sure no one thinks this is "coercion" or implicates the First Amendment because the newspapers/networks can always say no.

The same is true here. If the Trump administration asked Facebook to de-platform Senator Schumer, for example, Facebook would say no. If the administration applied coercion, Facebook would have an easy case for First Amendment violation in district court. There is no First Amendment with social networks willingly de-platforming someone. An epidemic-misinformation certainly could have huge security implications, even if you argue that COVID misinformation did not.

Now if you think Facebook, X, etc. are so big that even if they willingly and independently de-platform a speaker it has First Amendment implications (other than just being "troubling"), then we need to go down the road of common carrier, etc. But in today's context, I find it more troubling that the courts would step in and tell the government they cannot make requests to social networks to de-platform speakers than the requests themselves. Google, Facebook, etc. are big boys--if they feel coerced they can bring it to Court without the help of unconstitutional Texas legislation.

[Ken Arromdee]

If the Trump Administration had told Facebook to deplatform someone based on politics that the left didn’t like, Facebook would have responded “Your administration has no power to punish us if we don’t obey you, because if you tried, the national news media would all sympathize with us and the deep state would keep you from doing anything anyway. So your threat isn't real”.

The Biden administration has the power to punish social media.

[Krayt]

Yes, bending the knee lest section 230 get deleted, opening the trillion dollar club to hundreds of billions in stock losses, is “private organizations doing this of their own free will.” rollseyes emoji

They are huge, but governnent is huger.

Paul “Maud’dib” Atreides: “He who can destroy a thing, controls a thing.”

[Lawperson5000]

I disagree but I love the Dune reference.

[Lawperson5000]

It would require a law to remove Section 230, the government couldn't do it alone. I think Ken's point cuts the other way too--a social media company cooperating with one party and not the other is a demonstration of free will.

[Orbital Mechanic]

Everyone is always looking for the pure, golden rule that is simple to understand and everyone can agree to and will guarantee everyone's freedom.

I don't think it exists. The craving is based on the idea that "Words don't actually hurt anyone. Only actions do." So to be perfectly liberal (or libertarian, if you prefer), you need to allow anyone to say anything. If it is repugnant, so what. Society will reject them.

Germany found out that didn't work with the Nazis. Elon Musk is finding out that doesn't work on Twitter/X.

Sooner or later, you will have to have someone in government with the authority to make judgement calls to regulate. You can't take every case to court to do that. But the time of the first hearing the damage will already be done.

I don't want Trump doing it. I don't want Biden doing it but I would prefer him over Trump. So let's vote who gets the job.

[The Margrave of Azilia]

"the Nazis"

And Mike Godwin gets another example supporting his law.

If you take a look, you'll find that the National Socialists used more than free speech in order to obtain power. They used violence, especially street violence. So if we're drawing Broader Lessons, don't let fanatics go unpunished when they commit massive street violence.

[Z Crazy]

What's supposed to be wrong with this? How can it be wrong for governments to tell social media companies to remove content that denies that God exists? Isn't denying God the ultimate misinformation and the ultimate hate speech?

[Michael Ejercito]

Which God?

The God that is the Father, the Son, and the Holy Ghost?

Or the God that has no Son?

[Gozer the Gozarian]

He is referring to me.

[Gozer the Gozarian]

Who has the non-paywall link to the SG stay? I am too cheap to pay.

[Rossami]

The government has a right to speak on its own behalf but in a society that values free speech, the government's right to speak is limited in some important ways. For example, the government can't say discriminatory things that violate its own laws.

"They should just shut up" is emphatically one of the things government should not be allowed to say.

[Bored Lawyer]

Thank you. It should be obvious that the government's right to speak is circumcised by the Bill of Rights in a way that private citizens' right to speak are not.