Citing First Amendment concerns, federal judge Terry Doughty recently banned government officials from advising or encouraging social media executives to remove controversial content from their platforms.
Although the judge did carve out a limited exception for national security concerns, the Washington Post was right in describing his ruling as “overzealous, under-baked” and “unreasonably sweeping.”
Still, the judge’s liberal critics indulged in some unreasonably sweeping reactions of their own. “The case raises questions worth asking,” notes the Post, and here are two of them: On what topics is the government justified in pressuring social media platforms? And how far can it go before crossing a line and threatening the companies’ free speech rights?
In today’s superheated political environment, both sides tend to reach for extremes — to condemn the other without reservation, instead of looking for a reasonable accommodation between divergent opinions. But that black-and-white mentality is particularly unsuited to this subject, which involves a conflict between two precious and fundamental principles: the right to speak freely and the right to be safe.
Reconciling those principles, finding a workable framework that respects and protects both of them, requires precise analysis and a careful balancing of interests, not “overzealous” and “under-baked” volleys in ideological combat.
I’m reminded of Jack Dorsey, then the head of Twitter, who tried to find such a balance in handling Donald Trump’s social media tirades after the 2020 election. While Trump was simply voicing false accusations that the election had been rigged, Dorsey preserved his access to Twitter. But once Trump encouraged the insurrection of Jan. 6, Dorsey kicked him off.
“Offline harm as a result of online speech is demonstrably real, and what drives our policy and enforcement above all,” Dorsey explained. But his own action, he presciently warned, represents “a failure of ours ultimately to promote healthy conversation” and “sets a precedent I feel is dangerous: the power an individual or corporation has over a part of the global public conversation.”
That “healthy conversation” starts with an understanding that Dorsey was right to feel that Jan. 6 presented a direct threat to democracy itself. The same can be said of Trump’s continuing and corrosive attacks on the legitimacy of the 2020 election, which are paving the way for an even more serious threat to political stability should he lose again in 2024.
Similarly, the government has a deep and valid interest in combatting misinformation about past and future health emergencies. Policy decisions are fair game for criticism — including the extended closings of public schools — but baseless attacks on the value of vaccines directly jeopardized countless lives, triggering what Dorsey called “offline harm.”
“We’re not going to apologize for promoting responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic or foreign attacks on our elections,” White House spokeswoman Sharon Yang said after Judge Doughty’s ruling.
That’s fair. But it’s also troubling that Judge Doughty detailed instances in which the Biden administration used its leverage to advance political objectives, including the downplaying of negative news about the president’s troublesome son, Hunter.
“The FBI additionally likely misled social media companies into believing the Hunter Biden laptop story was Russian disinformation, which resulted in suppression of the story a few weeks prior to the 2020 presidential election,” the judge wrote in his order.
Protecting public health in the face of a deadly pandemic is a legitimate use of White House influence. Protecting the president and his son from embarrassing disclosures is not a defensible deployment of that power.
A related question is the tone and tenor of White House interactions with social media executives. Doughty’s order barred conversations with “the purpose of urging, encouraging, pressuring or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech.”
But confusion arises because those words don’t all have the same meaning. Urging and encouraging are legitimate forms of communication. Pressuring and inducing conduct — especially backed up with threats of political or regulatory retaliation — are clearly not. As Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy, told the Washington Post: “The really tough question is when does the government cross the line from responding to speech — which it can and should do — to coercing platforms to censor constitutionally protected speech?”
Finding workable answers to this tough question — and many others — requires a fair and thoughtful balancing of competing interests, not the headline-grabbing, crowd-pleasing responses favored by Judge Doughty and at least some of his critics.
(Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at stevecokie@gmail.com.)