On July 4, U.S. District Court Judge Terry A. Doughty, Chief Judge for the Western District of Louisiana, issued an order blocking various entities of the federal government from harassing social media sites into censoring content.

This has caused consternation among mainstream media outlets. And yet, the plain text of the order seems, at first blush . . . uncontroversial.

Doughty enjoined the U.S. State Department, the FBI, the U.S. Department of Homeland Security, and other federal entities and actors from contacting companies like Twitter and Facebook “for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”

Note the phrase — italicized here for emphasis  — “content containing protected free speech,” which is repeated numerous times through Doughty’s seven-page order.

Doughty listed major exceptions to the injunction. The feds can still contact social media companies about postings involving “criminal activity,” “national security threats,” threats against public safety, voter suppression, and anything that is “not protected . . . by the Free Speech Clause in the First Amendment to the United States Constitution.”

Government agencies and officials may also exercise “permissible public government speech promoting government policies or views on matters of public concern.”

Doughty’s order came in response to a lawsuit filed by the Republican attorneys general of Missouri and Louisiana. The suit alleges that social media companies — at the behest of the federal government — censored and suppressed skeptics of mask mandates and COVID lockdowns, shuttered parody accounts, suppressed the Hunter Biden laptop story, spiked posts concerning election integrity and voting by mail, and deleted negative posts about President Biden.

The judge, a Trump appointee, also issued a 155-page memorandum explaining the rationale for his decision. He offered a plethora of examples of government actors demanding that Twitter, Facebook, et al., takedown disfavored speech, including “joke accounts” targeting Biden family members, misinformation and disinformation,  and posts criticizing the government’s response to COVID.

Sometimes this pressure didn’t work as happened when White House officials demanded that a vaccine-denying video of Tucker Carlson’s on Facebook be removed. Facebook demurred, saying that the video didn’t violate its policies. The platform attempted to placate these officials by “demoting” the post so that it would receive fewer shares.

Enter Backpage

Twitter and Facebook have the absolute right to censor their platforms under the First Amendment, just as a newspaper can reject letters to the editor and block online comments.

But this becomes problematic when government actors lean on sites to censor their users, particularly if the government makes an implied threat. To this point, Judge Doughty cited the 2015 Seventh Circuit Appeals Court decision in Backpage v. Dart.

Backpage v. Dart was one of several federal and state court decisions that ruled Backpage, a massive classified listings site, was protected both by the First Amendment and Section 230.

In it, Judge Richard Posner found that Cook County, Illinois Sheriff Tom Dart violated the First Amendment when he sent a letter to Mastercard and Visa, advising the companies that they might be violating the law in accepting payment for adult-themed ads posted to Backpage by its users.

Credit card companies promptly stopped processing payments for the site. Backpage then sued Dart, winning an injunction against Dart from Posner. The government might find advertisements for escorts, massage, and striptease objectionable, but they were not necessarily illegal.

Posner wrote:

Nor is Sheriff Dart on solid ground in suggesting that everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.) One ad in the category “dom & fetish” is for the services of a “professional dominatrix”—a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually . . . It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution.

Government pressure on private businesses to change their practices is referred to as “jawboning.” As the Cato Institute recently pointed out in a lengthy report, it’s become increasingly frequent in the era of social media.

Doughty claimed there is plenty of evidence that government officials repeatedly crossed the line — at least enough for an injunction pending the outcome of a trial. He cited public threats by officials of “legal consequences” against Twitter and Facebook, such as anti-trust actions or possibly amending Section 230.

Doughty laid the blame  for the government’s jawboning at the feet of the Biden administration, writing that “there is no indication or evidence yet produced in this litigation that the Trump Administration had anything to do with it.”

The judge apparently contradicted himself by noting that some of this activity began in 2018, when Trump was in the White House.

In fact, President Trump did threaten Twitter — Tweeting in 2020 that he would “strongly regulate, or close them down” in response to Twitter’s supposed censorship of conservative voices. (Also, as Mike Masnick of Techdirt points out, the Hunter Biden laptop flap took place before President Biden was elected.)

In February, Rolling Stone reported that Twitter kept a database full of censorship requests from Democrats and Republicans. The magazine quotes one inside source as saying,

Everybody worked the refs. Usually with the Republicans, most of the time rather than saying, ‘Why are you taking things down?’ it was, ‘You need to put things back up.’ It was, ‘Put me back, put me back.’

The Fourth Estate

The reactions of establishment media outlets such as The New York Times and The Washington Post have been . . . predictable.

The Times warned that the injunction could “curtail efforts to combat false and misleading narratives.”

Yet, “false and misleading narratives” are not necessarily illegal. Doughty cites censorship of disputed issues — like the COVID “lab-leak” theory — which are not as cut and dry as they seemed a couple of years ago.

The Post  piece suggested the ruling could undo efforts “to address criminal activity, including child sexual abuse images and terrorism,” though communications concerning these subjects are exempted from the injunction.

Law enforcement, prosecutors, etc. can also make use of subpoenas, warrants, lawsuits, grand juries, and a number of other legal tools at their disposal.

Salon.com blasted the “Trump Judge’s ‘deranged and dangerous’ limits on anti-disinfo efforts.”

But the libertarians at Reason acknowledged the ambiguity of the situation.

It’s not a straightforward issue, as government officials also have a free speech right to communicate with moderators at social media companies. When and how that communication becomes an attempt at chilling free speech—backed by an implicit threat of state action if the social media companies don’t comply—are complex questions, and Tuesday’s injunction is far from the final say in the matter.

Still, there’s a reason why Facebook, Twitter, et al. largely bend over backward to cooperate with federal authorities.

Consider the fate of Backpage, which for years resisted pressure from the feds to restrict legal speech.

The result?

The government seized and took down the site and arrested its former owners, journalists Michael Lacey and Jim Larkin, taking nearly all of their money, smearing their names, and, more than five-and-a-half years later, will take them to trial for a second time come Aug. 8.

Proving that even if you are on the right side of the First Amendment, defiance of the federal government comes with a high price.

Please also see:
U.S. Attorney’s Office Wants to Ban First Amendment in Free Speech Case
and
Lacey/Larkin Blast Feds’ Bid To Ban First Amendment and Free Speech