The Legal Fight Over Government and Social-Media Censorship … – The Wall Street Journal

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Speaker 1: From the Opinion pages of The Wall Street Journal, this is Potomac Watch.

Paul Gigot: A federal judge rules that the Biden administration illegally pressured social media platforms to censor certain views it didn't like, especially on Covid-19, and the judge bars administration officials from meeting with the social media platforms. How significant is this case for the future of free speech and the government use of private actors to do what the First Amendment bars government from doing? Welcome, I'm Paul Gigot with the Opinion pages of The Wall Street Journal, and I'm here with my colleagues Allysia Finley and Kyle Peterson talking about this case, which is Missouri v. Biden, right now in federal district court. Allysia, tell us about the background of this case. Who sued the government and what are they claiming?

Allysia Finley: So Louisiana and Missouri, the states, they sued, actually various government officials. There are over a couple dozen and various government agencies, and these include CDC, Census Bureau, FBI, the HHS, and some of the officials that were named were Anthony Fauci, as well as Rob Flaherty, who we can get to in a little bit, who worked at these agencies and with the states. And also, some scientists or leading plaintiffs were authors of the Great Barrington Declaration in 2020, which was censored by many of these platforms.

Paul Gigot: Which took an alternative view of how to handle the pandemic.

Allysia Finley: Right. One of the other plaintiffs was the owner of Gateway Pundit whose post, and had been censored by some of these platforms. And they alleged that the platforms, again, Facebook, YouTube, Twitter being the primary ones, were censoring or removing, in some cases, de-platforming individuals at the behest of the government, and that the government and these government agencies and officials were coercing or encouraging the platforms to boot them or suppress their speech.

Paul Gigot: It's fascinating because of course the private companies themselves are not subject to the First Amendment per se. First Amendment constrains government actors. The private companies also have liability protection under Section 230 of the Communications Decency Act. So, why are the private actors acting on behalf of government here? Why did Judge Terry Doughty find that there was this pressure on them to do the censoring?

Allysia Finley: So he looked at, actually, this was a very facts and evidence specific case, and he examined the evidence, and a lot of these communications between the government agencies or government officials and the platforms, so the Twitter and Facebook employees, and he found that they were "significantly encouraging or coercing the private platforms to do their bidding." This actually gets to, in 1982, precedent Blum, which related to actually nursing homes and whether the government could be liable for essentially coercing nursing homes to violate law.

Paul Gigot: I see. So this is basically, he went through a lot of discovery. It's the first time these emails and other communications have actually been coughed up in a case like this, and he looked at that evidence. And what did he rule? What did he decide?

Allysia Finley: Well, he ruled that they had violated the free speech rights of the plaintiffs, and actually said that they'd probably violated this speech rights of the millions of Americans across the country. And by the way, they decided to restrict certain content that the government disliked, disfavored, and that this speech was predominantly conservative views.

Paul Gigot: And on Covid, it was dissenting views from the orthodoxy of the government on lockdowns, on vaccines in particular, and other things, right?

Allysia Finley: Masks, right.

Paul Gigot: Masks.

Allysia Finley: And those were the three big ones. I think the strongest evidence in the case actually really concerned the vaccines, and that's where you really saw the Biden White House officials put a lot of pressure on Facebook and Twitter and YouTube to take down content that had flied in the face of their official guidelines.

Paul Gigot: Kyle, what's the coercion that is supposedly exercised here by the government? Obviously, the government has its own right to talk to private actors. It can say, "We don't like this policy." That's not coercion per se. What is the coercive element here?

Kyle Peterson: It's communications between members of the government and staff for these social networks. So, here's a couple of examples.

Paul Gigot: But what makes it coercive? Because if they just say, "Call up Kyle Peterson," and say, "Kyle, I don't like that editorial you wrote." You're going to say, "Well, thank you very much for your comment, but I don't care."

Kyle Peterson: Yeah, I mean, so here's a couple of examples. "Cannot stress the degree to which this needs to be resolved immediately. Please remove this account immediately." Here's another one. "Internally, we have been considering our options on what to do about it." And there was some talk at that point of revising the Section 230 immunity that social media platforms enjoy in the law.

Paul Gigot: This is the government threat against the companies. We're tugging our chin and saying, "Hmm, we're thinking about revising 230, which protects you from liability."

Kyle Peterson: Right, and so the judge's view is that it's a little bit like, "Nice social network you have there, shame if something would happen to it." Here's what the judge says is the standard, "The state can be held responsible for a private decision only when it has exercised coercive power, or has provided such significant encouragement that the choice must be deemed to be that of the state." So basically saying that Facebook, Twitter, these social companies had no choice but to comply with these requests. I would push back a little bit though, because maybe that is true in particular with regard to some of these communications between the social networks and the White House. But if you go through and look at the exhibits, the discovery that was found in this case, a lot of this looks like places where people at the social sites that were concerned about misinformation, and people in the government who were concerned about that, were working together. So there's a White House email, for example, that flags an Instagram user, Anthony Fauci Official, and says, "Any way we can get this pulled down? It's not actually one of ours." The answer from Facebook is, "Yep, on it." So there's a case where Facebook has an incentive, I think, not to have people masquerading as public officials on their platform. The White House obviously doesn't want that either, and so they're kind of working together. And the same is true for some of the Covid stuff, at least, you have emails between the CDC and these social sites where the social sites are saying, "We're seeing all sorts of claims that Covid vaccines might cause ALS or magnetism, or that they can alter blood color. Can you verify whether this is true or not?" And the CDC says, "There's nothing to this," or in the examples of myocarditis, "Yes, there is something to this," and trying to respond. And I have a hard time seeing how there's coercion in some of these emails, at least.

Paul Gigot: Okay, fair enough. I mean, conversations like that are not coercive, but if you start to say, as a government official, "That Section 230 thing, we may want to revise that. Please excise this content." And I gather, Allysia, there's also some antitrust threats here that were part of it, correct?

Allysia Finley: Right. Then the privacy regulation, which the giants have also been trying to ward off, and the antitrust point, Facebook has already been sued. The FTC is already is trying to break up Facebook, and actually it's continued to go after Facebook with a number of lawsuits. And actually for that matter, the Justice Department has also sued Google, a numerous antitrust claims.

Paul Gigot: Which owns YouTube.

Allysia Finley: Right, so this threat was legitimate. And I think going back to the point on Section 230, what's interesting is the Biden administration tries to claim in its defense is, "Well, there was bipartisan support from Congress, and so that threat, it's not legitimate, or it doesn't really mean anything because Republicans support modifying or revising Section 230 too."

Paul Gigot: Did the government actually say that in that case?

Allysia Finley: Yes, they actually made that in their defense.

Paul Gigot: Of course, that if-

Allysia Finley: That makes it even more likely.

Paul Gigot: ... Yeah, it makes it more likely that they'd be able to follow through on the threat. So Kyle, what is your response to that? These are government actors, the White House being a very powerful government actor with control over Justice Department, with heavy influence over the federal agencies. Why would it not be coercive in that case?

Kyle Peterson: Well, it could be, and that's the question. I mean, it will be fascinating to watch this as it works its way up the appeals courts and maybe to the Supreme Court. I'm certainly open to the idea that particularly these White House statements that I quoted, that sounds a little coercive to me. One question in the case would be how far that goes down the chain of government? I mean, if somebody in the White House advisory team is saying coercive sounding things to Twitter, does that affect these good faith interactions between the CDC? Does that coercion go all the way down the government chain of command as it were? But that's part of why I think this case is so interesting, worth watching, is we have a new form of media, social media, and we don't have a great case law, nothing. It really, analogous to these situations to rely on. And so, we're going to answer some of these questions, and I would point to another piece of the judge's ruling. So he says, he barred certain communications, interactions between government officials and these social sites, but he says, "The following actions are not prohibited by this preliminary injunction." One of them is exercising permissible public and government speech promoting government policies, or views on matters of public concerns. So is it the secrecy that was the problem here? If these White House officials said publicly, "We think X is misinformation and we're disappointed that Facebook is not taking greater action." Is that coercive in the same way that private conversations to the same effect are? And then two, the judge also says that, not covered by his injunction, "Is informing social media companies of postings intending to mislead voters about voting requirements and procedures?" And I'm a little bit flummoxed by that because if these interactions are coercive with regard to Covid information, I have a hard time seeing how they're not coercive with regard to what people are saying on voting procedures.

Paul Gigot: All right. We're going to take a break, and when we come back, we're going to talk more about this fascinating case. A federal judge ruling that private censorship under pressure from the government violates the First Amendment, when we come back. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker, "Play the Opinion Potomac Watch Podcast." That is, "Play the Opinion Potomac Watch Podcast."

Speaker 1: From the Opinion pages of The Wall Street Journal, this is Potomac Watch.

Paul Gigot: Welcome back. I'm Paul Gigot with The Wall Street Journal, with Allysia Finley and Kyle Peterson, talking about the ruling by Judge Terry Doughty that found the government had illegally pressured private social media companies to censor speech and violated the First Amendment, particularly on Covid. Allysia, there's no doubt here in the factual case, the discovery that the judge undertook, that these companies did censor speech. They did censor content considerably, correct?

Allysia Finley: Right. In many cases, it was, they suppressed some of the content that they deemed "borderline". By that, it means that they prevented it essentially from going viral. People couldn't share it, so it had a very limited audience.

Paul Gigot: Okay, and this was the Great Barrington Declaration, we know was particularly contentious with Tony Fauci and government public health officials at the time. This is the declaration signed by many, many scientists, but Jay Bhattacharya and Martin Kulldorff were two of the promoters of this. And their argument was that you should take care of the most vulnerable people first, first and foremost under Covid. Make sure that older people, people who had underlying conditions were protected, but let the rest of the economy stay open. That was not where Tony Fauci was. And they ran a campaign internally, which has been exposed later with emails against the Great Barrington proposal.

Allysia Finley: Right. So in part of the ruling, they actually weren't able to find any instances in which the Tony Fauci and Collins actually pressured the social media companies.

Paul Gigot: Okay.

Allysia Finley: And so, it was a lot of internal communications between the two saying that we need to basically push back against this in the media, like doing articles, Washington Post, providing quotes in those cases.

Paul Gigot: Which is not illegal.

Allysia Finley: This is not illegal. So I think that's actually one weak point in the judge's ruling that just because they publicly denounced and tried to discredit the Great Barrington Declaration in the wider media, and then the social media companies kind of took the hint that, "Well, maybe we should also try to suppress this." I don't think that that passes as or meets the criteria as being coercive or significantly even in encouraging, because there really weren't any direct communications at least that they were able to uncover during legal discovery.

Paul Gigot: Okay. So it seems here, Kyle, that what we're talking about when it comes down to a legal matter is what qualifies as, how should we say, discussion between the government and these companies of the kind that we would have as journalists? Certainly, I would have as an editor and have had with government officials who call and gripe about something, or say, "We sure would like you to write an editorial about this or that." They don't say, "Paul, we're going to pull your license." Well, there's no license to practice journalism, but we're not going to try to take away your job or something like that. They can't do that, or we're going to sue you for something or other. But the social media platforms are vulnerable as we said. But does it come down to, do you think, a fact-based question of just how coercive this pressure was?

Kyle Peterson: How coercive it was, and also what the legal standard, the legal test for that coercion is, and whether it's different in the social media space than it is in other spaces? I mean, the difficulty of the analogies I think you hit, as a journalist, you can get calls from government officials that you maybe would describe as a frank exchange of views. And if you're a reporter doing something on the national security beat, I imagine officials, White House officials may call you and say that, "This is very important national security information. If you publish this, you're going to expose sources."

Paul Gigot: Right, and also say that you may end up being vulnerable yourself to some kind of investigation.

Kyle Peterson: Well, or you may end up killing people because there are sources that are described in this that would be revealed. And to me, I mean that sounds maybe persuasive or maybe not, but the question is whether the decision to publish still rests with the journalists and their editors. And I think that's the question here with social media as well. Whether the decision to moderate that content or not moderate that content was still reasonably in the hands of Twitter, Facebook, Instagram, what have you, or whether there was so much pressure on them that they basically had no choice but to comply.

Paul Gigot: What do you think about that? Is that the line that you would draw here, whether this is actually a proper ruling or not?

Allysia Finley: Well, I think that the coercion is, and whether it's implicit or explicit, I think that that's the key to the case. Now, I just want to use one other illustration is, we've been seeing what's happened to Twitter since Elon Musk took it over and how Lina Khan has basically been harassing the company.

Paul Gigot: She's the head of the Federal Trade.

Allysia Finley: Federal Trade, and basically, because of his hands-off content moderation policies and has been subject to all kinds of document requests, and FTC is also threatening to rewrite a privacy settlement with the company, and that just shows how vindictive the government can be, and the government really does have a lot of power over these companies. It can't really pull licenses per se, but it could seek to put a company out of business, break it up, so to speak. Maybe the Biden administration would be doing these antitrust cases anyways, but some of it could also be out of sheer vindictiveness.

Paul Gigot: Does the judge cite any precedence for the linkage between government and private censorship?

Allysia Finley: Not actually censorship. He cites a lot of different case precedents to, as I mentioned before, the 1982, the Blum precedent which involved the nursing home, and actually the basis in terms of whether or what qualifies as coercion and significant encouragement, which is the standard to hold the government liable or responsible for violation, whether it be a First Amendment or other civil rights or other individual rights violation. But really, in this realm of First Amendment rights, especially with regards to the media or social media, it really is an untested case.

Paul Gigot: There are not a lot of precedents here that have gone up to the Supreme Court. There is a case from some decades ago where the Supreme Court did rule on a, it was in West Virginia I believe, where the government stood guilty of compelling speech because it amounted to a company town. It was just a small town where everybody more or less worked for the same company, and therefore was deemed to be acting on behest of the government. But there's not a lot of case law on this, so this could set some new ground, Kyle. And I'm just reading between the lines of the Peterson coercion here, or the discussion, and I think you're skeptical.

Kyle Peterson: Well, at least I think that there is possibly a mixed ruling here where maybe some of the White House private statements to these social networks crossed the line, and maybe the CDC apparatchiks coordination with Twitter on them asking, is there any truth to this claim, this health claim about a Covid vaccine, doesn't cross the line. But I think this is certainly one to watch just because it is, I think, setting some new ground, and does raise questions for other areas of life. I mean, we were talking about a comparison to journalists earlier. What if you had a newspaper that ran an op-ed, and the President says, "There is information in here that is libelist about me and my administration, and that's why I'm going to appoint judges that will overturn New York Times v. Sullivan, pass a constitutional amendment to change the libel standard under US law." Is that a First Amendment breach? Is that a retaliation?

Paul Gigot: No, no, not at all.

Kyle Peterson: I think there's a lot of cans of worms that are being opened here, and it's hard for me sitting here right now to see around all the corners about how they're going to be settled. But it is certainly going to be an interesting case. And maybe one, or maybe we have to wait for another one to get up to the Supreme Court. There's another one that could be coming on Ron DeSantis and Disney, his removal of government benefits from Disney after Disney spoke out against the law concerning teaching of sexual orientation and gender identity in elementary schools. That is being litigated as a retaliation case, and maybe that will have some bearing on this as well.

Paul Gigot: Well, it strikes me as a very important area to be investigated and litigated because of the power of social media platforms to control speech. I mean, during Covid, we essentially had one part of the debate about Covid, which we carried on in our pages, but that debate could not extend to social media because of the censorship of a lot of those views that the platforms undertook. You saw another illustration with the 2020 campaign with the censoring of the Hunter Biden story that the New York Post have published about his laptop, which turned out to be entirely true. But because of the 51 former spies who said that at the time, that that was possibly Russian misinformation, the platforms used that as an excuse to censor. So, there's a broad concern there for what this says about democratic debate. And it's bad enough if the platforms themselves, from all kicking in the same direction with the same point of view, censor alternative points of view, but it's much worse when the government is able to use them as agents of their official policy to censor dissenting or alternative points of view.

Kyle Peterson: I think that's right. On the point about democratic debate, I would say two things, which is the person who is upset that Facebook keeps taking down their posts about how vaccines cause magnetism or alter their blood color is in the same position as the person whose op-eds on that subject keep getting refused by op-ed editors at newspapers around the country. And I think that it's easy to overestimate the influence of social media on democratic debate. Most Americans are not on Twitter. There is still an awful lot of speech that takes place off Twitter, and way more magnitudes, more speech than there was in the Democratic debate even 10 or 20 or 30 years ago. And so, there's a lot of speech out there, a lot of avenues for speech, and there are many companies that want to be the next Twitter. There is competition out there. One problem is the network effects. I mean, Twitter is powerful because everybody else is on Twitter. But also part of it is, I think, those moderation policies. There are unmoderated social media sites, and they tend not to be very pleasant places to spend a few minutes.

Paul Gigot: Allysia, you're going to get the last word here. What do you think about this issue and where it goes from here?

Allysia Finley: Well, I think as Kyle pointed out, there are a number of free speech cases headed up to the Supreme Court. Texas and Florida have tried to tackle this issue in passing laws that would restrict social media companies from censoring speech and speech of public officials and media companies. And the Supreme Court is now considering whether to grant cert to both of those cases, and has asked for the Solicitor General's opinion. But I think those are probably the two more important cases to watch going up to the Supreme Court, and may decide also the extent of free speech rights for the platforms themselves.

Paul Gigot: Right, because those cases are about the governments of those states saying the tech platforms cannot censor, right?

Allysia Finley: Right, and the platforms in those cases are claiming that this is an abridgement of their First Amendment rights.

Paul Gigot: Right, to be able to decide what they want to say or not publishes content. All right. Kyle Peterson and Allysia Finley, thank you for this fascinating discussion. Thank you all for listening. We're here every day with Potomac Watch, and we will back tomorrow with another edition. So, hope you'll join us then.

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The Legal Fight Over Government and Social-Media Censorship ... - The Wall Street Journal