On July 4, federal Judge Terry Doughty, an appointee of former President Donald Trump, ruled that the Biden administration had violated the First Amendment by asking social media sites to delete posts containing false information, including misinformation about COVID-19 vaccines and the 2020 election.
Judge Doughty then enjoined further contact by the Biden administration with online platforms on matters pertaining to speech.
The order has been stayed by the Fifth Circuit Court of Appeals pending further litigation of the case.
The case had been brought by Republican attorneys general in Louisiana and Missouri, who judge-shopped their forum in Louisiana specifically to have Judge Doughty hear the matter.
Such blatant manipulation invites the public to see the case in partisan terms—Democrats denouncing it and Republicans welcoming it.
But, unless we are to surrender the rule of law altogether, we should not react reflexively. We have to actually look at the facts of the case.
Even if the resulting injunction was overbroad, and even if it is doubtful that the plaintiffs had standing to bring the case, the fundamental question for us should be, did the Biden administration violate the First Amendment?
Under the well-established law of free speech, certain principles are clear.
First, social media sites are privately owned. That means they are not themselves subject to the restrictions of the Constitution.
No matter how big they are, Facebook, Twitter and all the rest are completely free to censure any person or posts they wish.
Second, unless someone is defamed, almost all false claims about public issues are protected speech under the First Amendment. I am free to say that vaccines cause autism, or that the 2020 election was stolen, despite clear evidence to the contrary. The government cannot prosecute me for saying those things nor restrict my speech in any way.
Finally, and in this context most importantly, the government cannot do indirectly, through a private party, what it cannot do directly. So, the government cannot order a private website to delete a false post.
On the other hand, the government has free speech rights of its own. The Biden administration is free to denounce the speech of others as inaccurate and dangerous. It is even free to say, in a general way, that social media websites should remove false posts.
The conclusion we can draw from this is that the emails sent by Biden administration officials strongly urging websites to remove false claims were unconstitutional. This is so even if the false statements in question violated a website’s own guidelines about misinformation.
Actually, if we borrow from the criminal law of solicitation, it would be unconstitutional even for the government to merely encourage social media sites to censure speech in a direct communication.
The Biden administration is free to issue any public statements it likes, including public statements that urge Facebook to purge specific posts. But it cannot communicate the same message to Facebook directly.
Similarly, the Biden administration may answer any questions a private party puts to it. So, if Facebook wants to know whether a particular claim is false, a government official is free to give Facebook an accurate answer.
The government cannot convene private groups to discuss the problem of misinformation, but is free to respond if such groups are convened privately and invite comments by government officials.
That is why an injunction that prohibits Biden administration officials from initiating communications with private websites about speech is the best way to protect freedom of speech.
This is also why you and I are free to urge Facebook to censure speech and to deny people platforms for their ideas. You and I are not the government.
You and I are even free to boycott businesses that say things we don’t like — but the government cannot do that.
This is all going to strike some people as absurd. Why should lies get any legal protection?
The First Amendment is strong medicine. It assumes that the best way to deal with false information is with truth rather than with suppression.
This is not the law elsewhere. Most of the world prohibits false speech, from Holocaust denial to false medical claims.
Maybe we should change. Maybe the American approach to free speech is too dangerous in a world of AI and massive social media. Maybe we should try government censorship.
But consider what that would mean. The next Republican who is elected president would be the one to decide which ideas can be discussed and which cannot be.
Just imagine Florida Gov. Ron DeSantis with the power to suppress “false” ideas about gender identity.
We should also look at what censorship of speech accomplishes. In the United States, Holocaust denial is protected speech. In much of Europe it is a crime. But this has not prevented such claims from circulating in Europe. Nor has protection of Holocaust denial led to more such denial here.
And the same is true of false claims about vaccines. These claims are spreading all over the world, whether they are officially suppressed or not.
Of course, allowing lies to be told in the expectation that truth will have the power to persuade is a gamble. But, as Justice Oliver Wendell Holmes wrote in 1919, in defending freedom of speech, “all life is an experiment.”
I would sooner trust my fellow citizens to decide what is true and what is false than to cede that power to politicians, whichever political party they are.
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