We here at The Progressive tend to take an expansive view of the First Amendment: Yes, it really does protect EVERYBODY’s right to speak free from government constraint, even people who say despicable things. But is there such a thing as taking the protections of the First Amendment too far?
That’s a not-untenable interpretation of what happened in June, when the U.S. Supreme Court decided to protect the right of a Colorado woman to refuse to produce a wedding website for same-sex couples, something no one had asked her to do (see “Does the First Amendment Allow Bias?”, February/March issue). The court decided that making a provider of an “expressive service” treat LGBTQ+ people the same as everyone else was an intolerable infringement on her right to be a religious bigot.
“The court’s decision opens the door to any business that claims to provide customized services to discriminate against historically marginalized groups,” lamented the American Civil Liberties Union, which had urged the court to rule against the designer. “The decision is fundamentally misguided.”
Many observers also think the Supreme Court has gone too far in equating money with speech, especially in its 2010 Citizens United decision, which allowed corporations and unions to pump unlimited amounts of cash into electoral contests as independent expenditures. (In that case, the ACLU was on the side of the corporations, saying it “does not support campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech.” Now that’s hardcore.)
But perhaps the clearest example of true First Amendment overreach was delivered on July 4 by a federal judge in Louisiana, in a case known as Missouri v. Biden. The judge, Terry A. Doughty, barred multiple federal agencies from contacting social media companies seeking to remove misinformation, on the grounds that this interfered with the free speech rights of the people spreading it.
Doughty, an appointee of former President Donald Trump, enjoined officials at agencies including the Department of Health and Human Services, the Centers for Disease Control and Prevention (CDC), the Census Bureau, the FBI, the Justice Department, the Department of Homeland Security, and the State Department from “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” He did not just bar the government defendants from making threats but also from “meeting with” and “engaging in any communication of any kind” with social media outlets, or even asking them to “be on the lookout” for various kinds of misinformation.
In a 155-page memorandum in support of his ruling, Doughty fully embraced the argument of the plaintiffs, which included the Republican attorneys general of Louisiana and Missouri, that federal agencies had overstepped in pointing out what they deemed to be misinformation and its more deliberate cousin, disinformation, on topics ranging from COVID-19 vaccines to Hunter Biden’s laptop.
“If the allegations made by plaintiffs are true,” Doughty declared, “the present case arguably involves the most massive attack against free speech in United States’ history.” He said “the evidence produced thus far depicts an almost dystopian scenario” in which the U.S. government “seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’ ” Yikes.
The Trump-appointed judge bought hook, line, and sinker the argument that federal agencies had overstepped in pointing out what they deemed to be misinformation.
The government asked Doughty for an emergency stay pending appeal, saying his injunction’s “broad scope and ambiguous terms . . . may be read to prevent the government from engaging in a vast range of lawful and responsible conduct.” Doughty refused, saying his ruling was “not as broad as it appears” and included exceptions for “postings involving criminal activity, criminal conspiracies, national security threats, extortion,” and so on. (The judge’s motion denial was so rash that he misidentified one of the individuals whose free speech rights were said to have been jeopardized by the government as “John F. Kennedy Jr.,” who died in 1999, when he meant Robert F. Kennedy Jr., who is currently running for President.)
On July 14, a federal appellate court panel made up of three judges, including a Trump appointee, stayed implementation of the order. In early September, it ruled that some Biden Administration agencies likely engaged in coercion but it also deemed Doughty’s ruling “both vague and broader than necessary.” In the end, the matter could be decided by the same Supreme Court that ruled in favor of the querulous website designer.
The Chicago Tribune, long “a proponent of conservative principles” that has in recent years swung more toward the blue, according to Chicago magazine, editorialized in favor of Judge Doughty’s decision.
“We advocate for responsibility on the part of Twitter, Facebook, and Snapchat, just as a good newspaper takes care over what it does and does not publish,” the paper wrote. “But that’s not what this case is about.” Rather, it said, the Biden Administration “opened up a back channel to sympathetic senior employees at Twitter. White House operatives openly pointed out problematic posts that they wanted taken down.”
Clucked the Tribune: “Government should not be in the business of censoring what Americans have to say on their social media platforms.”
But that’s not what happened here. The social media outlets contacted by federal agencies were free to exercise their own judgment; there were no threatened consequences if they ignored what the government had to say. A newspaper, of all institutions, ought to recognize that the experts within agencies including the CDC are uniquely qualified to weigh in on matters of science, and have every right to do so.
Not the Tribune. “Much as we would like to believe otherwise, there is not one ‘science’ to trust,” it wrote. “In a free society, people have to be able to hear all sides, judge who they think can be trusted for themselves, and navigate the free marketplace of ideas. Such is the choice Americans made long ago.”
In what imagined world does the Chicago Tribune think the American public does not have enough access to misinformation?
While the ACLU does not seem to have taken a position on this case, Vera Eidelman, a staff attorney at its Speech, Privacy, and Technology Project, offered some useful perspective. “The government can use its bully pulpit to condemn speech—but what it can’t do is be an actual bully,” she told Gizmodo. “It can’t use, or threaten to use, coercive state power to stifle protected speech, including social media companies’ editorial decisions about how to moderate content that appears on their platforms.”
Biden Administration lawyers have described the lawsuit as an attempt to “suppress the speech of federal government officials under the guise of protecting the speech rights of others.” They say the proposed—and, for a brief while, imposed—injunction would “significantly hinder the federal government’s ability to combat foreign malign influence campaigns, prosecute crimes, protect the national security, and provide accurate information to the public on matters of grave public concern such as health care and election integrity.”
Writing on the website Just Security, law professors Leah Litman and Laurence H. Tribe shred the notion that the government must shut up so the fabrications of others can be loudly heard.
What has happened here, they say, is that a lone federal judge, citing the First Amendment, has sought to impose “a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation.”
As Litman and Tribe see it, “[T]here may be circumstances where the government runs afoul of the First Amendment by effectively forcing private companies to remove protected speech—or, for that matter, forcing those companies to say what they don’t believe. But the district court’s analysis does not even purport to seriously engage with the issue of when that might occur. Instead, the opinion seems to maintain that the government cannot even politely ask companies not to publish verifiable misinformation.”
Indeed, they write, “the court’s order, which prevents the government from even speaking with tech companies about their content moderation policies, deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation.” They say Judge Doughty “made no effort to identify circumstances where the government came even close to coercing social media companies into doing something they didn’t want to do.” Instead, he simply sought to erect “a wall of separation between government and powerful private actors” that threatens to “turn the Constitution’s protection of free expression in an open society into an obstacle course for some of the most valuable exchanges of information and ideas we can imagine.”
The right to free speech is an essential component of a free society; it’s not for nothing that the First Amendment is the one that comes first. It says the government may not abridge the ability of people to speak freely. But it imposes no constraints on the ability of publishers—social media included—to police their content. And it does not mean that the government must remain silent in the face of ill-conceived, baseless, and nonsensical expression.
To declare that people have a First Amendment right to lie without contradiction is to take the First Amendment too far.