Much like the war on drugs, war has formally been waged against the spread of misinformation. Social media has become a battleground, and the federal government has taken measures to combat online content it considers “hazardous.” In essence, the federal government has been accused of doing the work for social media companies, taking it upon themselves to moderate the internet for any misinformation.[i] The federal government allegedly told private social media companies what content ought to be moderated and coerced them to change their policies.
On July 4, 2023, Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana delivered an unprecedented and unusual injunction in Missouri v. Biden.[ii] On September 8, 2023, the Fifth Circuit Court of Appeals affirmed in part.[iii] The injunction was in response to the Court determining that officials within President Biden’s administration had illegally pressured social media platforms to censor content they independently deemed to be misinformation about the COVID-19 pandemic.[iv] Specifically, it was alleged that federal officials had usurped content-moderation power and decision making away from private social media companies.
The injunction served to limit the contact between the federal government and social media companies about virtual content on their platforms.[v] The virtual content concerned speech on some of today’s most controversial and polarizing issues.[vi] The scope of the injunction is far reaching and governs thousands of federal officials and employees trying to moderate content or communicate with social media platforms about the moderation of content.[vii] Never before has a U.S. District Court limited the executive branch’s ability to communicate with social media platforms.[viii]
In Missouri v. Biden, the Fifth Circuit held that in situations where federal officials performed the role of social media content moderators, they transformed the private platforms’ content moderation decisions into state action, which thereby implicated the freedom of speech protections granted by the First Amendment.[ix] Since at least 2020, federal officials have often communicated with nearly every major American social media company about misinformation on their platform.[x] It was alleged that officials from the White House, the CDC, and the FBI, among other agencies, went as far as urging the companies to remove specific content and accounts from their platforms.[xi] These companies readily complied, even going as far as keeping federal officials up to date with a steady stream of reports detailing their moderation activities concerning the “flagged” content and accounts responsible for posting such content.[xii] However, on September 14, 2023, the Biden administration petitioned the United States Supreme Court to temporarily block the lower court’s order.[xiii]
The Fifth Circuit highlighted how in one email, a White House official told a specific platform to take a post down “ASAP” and further demanded that the platform remain vigilant of all content posted within “the same genre.”[xiv] In a similar instance, it was alleged that a federal official told a company to ban an account on their platform altogether, stating that he could not “stress the degree to which this needs to be resolved immediately.”[xv] Several other examples were highlighted to show that decisions undertaken by the social media companies were not made following independent judgment guided by their own standards.[xvi]
In support of this, the Court noted how several platforms changed their terms of service “in concert” with recommendations from the government agencies.[xvii] The Fifth Circuit thus concluded that the officials entangled themselves in the platforms’ content moderation policies and decision-making processes.[xviii] This entanglement, according to the Court, matured into an active and meaningful control over moderation, such that the government officials had coerced the platforms to impose the officials’ standards.[xix]
Although the federal government does have the power to “provide the public with information and ‘to advocate and defend its own policies,’” it is unclear if censoring the information available to Americans on social media platforms is a permissible objective within the scope of the public interest.[xx] Likewise, the government is prohibited from using the government-speech doctrine to “silence or muffle” content it does not agree with.[xxi]
But how can the federal government be an arbiter of truth? The First Amendment is clear: “Congress shall make no law abridging the freedom speech, or of the press.”[xxii] However, the Framers did not enjoy twenty-first century luxuries such as iPhones and Instagram. It was thus impossible for the Framers to have drafted the Constitution with an eye toward affording protections to things they could have never envisioned. As a result of the inherent ambiguities surrounding First Amendment implications and online content moderation by the federal government, the following questions remain unanswered: what does it mean to assemble on social media; what does it mean to speak freely on social media; and what are you protected in saying, and not protected In saying, while ranting on Facebook? Given this uncertainty, a heated argument on Twitter (now known as “X”) may result in a visit from a myriad of law enforcement agencies.
Nevertheless, the public would be rightfully offended if the federal government required publications such as the New York Times and Washington Post to submit rough drafts of their articles for the material to be reviewed by government content moderators before publishing. So, why was the federal government allowed to jointly moderate social media platforms for content that is undoubtedly protected free speech? While it would be ideal to eliminate all misinformation on the internet, there are less restrictive measures available. For one, the government may incentivize the moderation of misinformation through legislation that looks to regulate social media platforms. However, any legislation by Congress that seeks to regulate speech on social media platforms on the basis of “content” is presumptively invalid.
Any content-based regulations based on what individuals post concerning a topic or viewpoint requires “strict scrutiny” analysis, because the freedom of expression under the First Amendment is a fundamental right.[xxiii] Under this test, a law will only be upheld if necessary to achieve a compelling government purpose.[xxiv] Since the spread of misinformation may have varying consequences on national security, the general public’s health, and safety, there is undoubtedly a compelling government interest.[xxv] Under the strict scrutiny test, the government’s actions at issue must also be necessary, such that it is both the least restrictive alternative and narrowly tailored to address the compelling government interest.[xxvi] If such legislation was to pass and found constitutional, Congress could delegate the executive branch with regulatory authority via “intelligible principles” to fill the gaps of the federal regulation of, in this case, the spread of misinformation on social media platforms.[xxvii] However, none of this occurred–it appears that shortcuts may have been taken and constitutional rights circumvented. The matter is further complicated by courts having to assess what constitutes “misinformation,” which is particularly difficult because the line between misinformation and opposing ideology is hard to decipher.[xxviii]
Several First Amendment issues will need to be addressed to resolve this case. For example, courts will have to outline what is a content-neutral regulation of social media content, as opposed to what are content-based regulations.[xxix] Nevertheless, there is no reason to treat speech on social media platforms as anything other than speech for First Amendment purposes.[xxx] It follows that the same constitutional requirements and case law surrounding public speech would apply to speech on social media platforms. Circumventing the constitutional guarantee to freedom of expression to correct misinformation is a slippery slope. It resembles McCarthy-era measures undertaken by the government to combat the domestic spread of communist ideology in the U.S. It is fundamentally un-American for the government’s interaction with a private company, let alone a media company, to resemble coercion in any way.[xxxi] It is an action that violates the values and principles firmly rooted in this Nation’s history and traditions.[xxxii]
[i] Amy Howe, Biden Asks Justices to Block Limits on Collaboration With Social Media Companies, SCOTUSblog (Sep. 14, 2023, 03:36 PM), https://www.scotusblog.com/2023/09/biden-asks-justices-to-block-limits-on-collaboration-with-social-media-companies.
[ii] See Missouri v. Biden, No. 3:22-CV-01213, 2023 U.S. Dist. LEXIS 46918, at *5, *10 (W.D. La. July 4, 2023)(explaining how the injunction is unprecedented given its context).
[iii] Missouri v. Biden, No. 23-30445, 2023 U.S. App. LEXIS 23965, at *5 (Cir. Ct. App. Sept. 8, 2023).
[iv] See id.
[v] See id. at *93–94 (limited the extent to which government officials could instruct and communicate with social media companies about content moderation).
[vi] See Jimmy Hoover, Biden Officials Ask Justices to Block Order Restraining Social Media Interference, 270 N.Y. L. J. 2 (2023) (discussing how the complaint alleged government officials directed social media companies to take down posts about the “lab leak” theory, vaccine side effects, among other polarizing topics).
[vii] See Biden, 2023 U.S. Dist. LEXIS 46918, at *65.
[viii] See id. at *5, *9.
[ix] See Biden, 2023 U.S. App. LEXIS 23965, at *5, *89–90 (holding that government agencies had exercised significant control over moderation decision by likely coercing to significantly encouraging the social media platforms).
[x] See id. at *5.
[xi] See id. at *26, *89–90.
[xii] See id. at *6.
[xiii] Howe, supra note i.
[xiv] See Biden, 2023 U.S. App. LEXIS 23965, at *7, *63.
[xv] Id. at *8.
[xvi] See id. at *78 (“On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content.”).
[xvii] See id. at *82–84 (explaining how several platforms changed their terms of service to fit instructions from the FBI).
[xviii] See id. at *58–59, *76–77.
[xix] See Biden, 2023 U.S. App. LEXIS 23965, at *89–90 (holding that the decisions made by the social media platforms after coercion or significant encouragement from the White House, the Surgeon General, the CDC, and the FBI were rendered state action).
[xx] See Biden, 2023 U.S. Dist. LEXIS 46918, at *90.
[xxi] Biden, 2023 U.S. App. LEXIS 23965, at *58.
[xxii] U.S. Const. amend. I.
[xxiii] See Reed v. Town of Gilbert, 576 U.S. 155, 156–157 (2015) (explaining that a law that is content based “on its face” is subject to strict scrutiny analysis, even if the government’s motive was benign).
[xxiv] See id. at 180 (Kagan, J., concurring) (reasoning that it is very rare for a free speech infringement to withstand strict scrutiny analysis because for a law to be upheld the content-based distinction must be necessary and narrowly drawn to achieve that compelling state interest).
[xxv] See Howe, supra note i.
[xxvi] See id.
[xxvii] See Gundy v. United States, 139 S. Ct. 2116, 2129–2130 (2019) (explaining how intelligible principles are permissible under the separation of powers, as a way for congress to guide the delegee’s exercise of authority).
[xxviii] See Reed, 576 U.S. at 163–64 (elucidating on distinctions concerning the different forms of speech that if subject to regulation, call for strict scrutiny).
[xxix] See id. at 164.
[xxx] See Hoover, supra note vi.
[xxxi] See Biden, 2023 U.S. Dist. LEXIS 46918, at *85 (highlighting that a government official who “threatens to employ coercive state power” to hinder the free expression of speech violates the First Amendment, even if the officials lack decision-making authority) (quoting Okwedy v. Molinari, 333 F. 3d 339, 340–41 (2d Cir. 2023)).
[xxxii] See id. at 174 (Alito, J., concurring) (“Limiting speech based on its ‘topic’ or ‘subject’ favors those who do not want to disturb the status quo. Such regulations interfere with democratic self-government and the search for truth.”).
