When does tackling pandemic misinfo become censorship? US courts argue it out

Analysis The USA’s Fifth Circuit Court of Appeals has narrowed a lower court ruling that ordered the US government not to pressure social media companies to moderate user-posted content.

The decision, published Friday, was hailed by conservative litigation group the New Civil Liberties Alliance as a victory for free speech. But Eric Goldman, a professor, Santa Clara University School of Law, believes Biden administration foes may have scored an own-goal.

The lower court ruling [PDF], from Louisiana federal district Judge Terry A. Doughty on July 4, partially granted an injunction that broadly limited the extent to which US government agencies can deem content so potentially harmful that they urge social media sites to remove it from their services.

Judge Doughty determined that the plaintiffs – the State of Missouri, the State of Louisiana, Dr Aaron Kheriaty, Dr Martin Kulldorff, Jim Hoft, Dr Jayanta Bhattacharya, and Jill Hines – made sufficiently strong arguments that their speech was suppressed at the direction of the government that they are likely to succeed at trial.

In short: the judge partially granted their request to prohibit the government from telling social media companies how to moderate content.

The United States government seems to have assumed a role similar to an Orwellian 'Ministry of Truth'

"Although this case is still relatively young, and at this stage the court is only examining it in terms of plaintiffs' likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario," Judge Doughty wrote in a memorandum explaining his ruling.

"During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States government seems to have assumed a role similar to an Orwellian 'Ministry of Truth.'"

The plaintiffs claimed various social media firms including Meta (Facebook), Google, Twitter (X), and YouTube, at the request or demand of various government agencies, suppressed narratives related to: Hunter Biden's laptop; the lab-leak origin theory for COVID-19; problems with masks and lockdowns; opposition to vaccines; claims about election integrity and voter fraud in the 2020 US election; parodies of administration officials; and negative posts about the economy and about President Biden.

Doughty was appointed to the district court by former President Donald Trump and has made several rulings that challenge Biden administration policies. The partial injunction [PDF] he issued banned federal officials from meeting, corresponding with, communicating with, or threatening social media firms for purposes related to content moderation and the removal of misinformation.

The Fifth Circuit, called the "most politically conservative circuit court" in the US, dialed that injunction back somewhat. The appellate ruling [PDF] affirmed part of the ruling, reversed part of it, vacated part of the injunction, modified part of the injunction.

The three-judge appeals panel said nine of the lower court's ten prohibitions were vague and overly broad at this stage of the litigation.

"Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action 'for the purpose of urging, encouraging, pressuring, or inducing' content moderation," the appeals panel said. "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."

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And citing problems with prohibitions eight, nine and ten, they vacated all save for the sixth, which they modified to state that government officials or their agents can 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."

Not all speech in the US is protected, so this injunction – in place while the case is being heard – does not apply to government communication to social media companies about: incitement to imminent unlawful action; harassment; credible threats; defamation; obscenity and child pornography; among other exceptions.

"The line between impermissible state intervention and ordinary government functions is really murky, and this opinion doesn't really try to clarify that," Santa Clara University’s Goldman told The Register in a phone interview.

"They simply decide some things are impermissible. Other things are okay. And that makes the rule from the case impossible to operationalize, for the government and possibly for the services. Nobody exactly knows what they're going to be required to do based on this ruling."

The line between impermissible state intervention and ordinary government functions is really murky, and this opinion doesn't really try to clarify that

Goldman said he expects the US Supreme Court will have to get involved because the White House, the FBI, and other agencies don't know how to operationalize the injunction: "They don't know where the line is between doing their job and protecting public health and safety, and issuing dictates from the government. The Supreme Court is the only one that can give them more clarity."

"Unfortunately, I don't think the Supreme Court is likely to be more helpful and so we're likely to live with ambiguity for a long time," he added.

Goldman said the ruling is infuriating for its lack of consistency with prior Fifth Circuit reasoning.

"The court said it is impermissible for the government to commandeer content moderation practices," he said. "But that's exactly what the Florida and Texas social media censorship laws did. They literally overrode the social media companies' editorial discretion via government edict.

"And thus, the Fifth Circuit, the same court, upheld those interventions, saying that was constitutionally permissible for the government to dictate content moderation operations. In other words, this opinion is in irreconcilable tension with the Fifth Circuit's earlier opinion on the social media censorship laws."

Also, Goldman observed that the Fifth Circuit seems to be saying that these social media companies risk becoming state actors by engaging with government officials.

For example, with regard to platform cooperation in limiting health misinformation, there's passage in the opinion that says, "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.'"

"That's a huge problem for the government," he continued. "If internet companies become state actors, then they cannot report information about their users to law enforcement unless they comply with all the laws on criminal procedure."

All the rules around evidence

As an example, Goldman cited how the government requires internet services to provide data about child sexual abuse material. If those companies become state actors through government intervention, he said, then those reports become impermissible evidence because they haven't been done in compliance with legal rules that constrain the government.

"By expanding the zone of what's considered to be the integration between the government and the private sector, I think that Fifth Circuit has blown holes in our standard views about the independence of internet companies in reporting information and in moderating content," said Goldman.

The Fifth Circuit appears to be mindful about this possibility by emphasizing the limited reach of its decision. "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," the decision states.

Nonetheless, Goldman argues that plaintiffs and defendants will be looking for ways to weaponize the ruling to undermine the rule of law elsewhere. The court, he suggested, may play this as if it has put the Biden administration in its place. "But actually I think it's an own-goal," he said. "I think that they're going to realize this actually helps the bad guys."

Pointing out that the Trump administration was worse on these matters, he said this is not a Democrat-Republican problem. "This is a government-private sector problem and that's why the courts need to be more careful," he said. ®