Murthy v. Missouri
How to enforce the First Amendment
On July 4, 2023, Judge Terry A. Doughty issued a preliminary injunction against several agencies and members of the Biden administration from contacting social media services to request the blocking of material, with exceptions for material involving illegal activity. On appeal, the Fifth Circuit Court of Appeals found that there had been some coercion in the government's contact with social media companies in violation of the First Amendment, but narrowed the extent of Doughty's injunction to block any attempts by the government to threaten or coerce moderation on social media. The United States Supreme Court initially stayed the Fifth Circuit's order, then granted review of the case by writ of certiorari.
Hearings for the case were held in May 2023. Judge Doughty issued his ruling on July 4, 2023, issuing a preliminary injunction against several Biden administration officials from contacting social media services for "the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech." In his 155-page ruling, Doughty wrote: "The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19;1 opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country." He continued: "If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States' history. The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition." (Wikipedia)
Given the power of the federal government, including the ability to commence anti-trust actions against any firm as large as Facebook or Twitter or to pass legislation affecting them, the communications that occurred were as much an implied threat as a Mafia boss’s comment on what a nice restaurant you have and how terrible it would be if something happened to it. They should be considered government action to suppress speech, in violation of the First Amendment. The hard question, assuming the Supreme Court agrees with me, is how to prevent it.
The President and members of his administration are surely entitled to make speeches arguing for the validity of the 2020 election, pretending that the Hunter laptop was Russian disinformation, urging people to get vaccinated. They are entitled to complain publicly about the amount of false information to be found online. Fauci is entitled to claim that the lab leak theory is ruled out by the relevant science, coordinate with scientists whose income comes from federal funding to pretend it is true, try to persuade other people, including the people running Facebook, to support his position. Where can one draw the line between speech and threats? If you did manage to draw that line, how would you enforce it?
We cannot prevent government actors from trying to influence the policies of social media companies but might be able to prevent them from doing it covertly. Interested parties could then draw their own conclusions as to whether the absence of visible arguments against the government position is evidence that there are none. Some might even conclude that if there were no persuasive arguments the government would not bother to suppress them.
I propose that any communication between any government actor in a position to make threats — the local post office worker doesn’t qualify — and any employee of a social media firm in a position to affects its policy should be public information, available in a searchable database online. The government remains free to try to pressure the media to suppress information but the fact that they are doing so will be known, provably known, to anyone who wants to use that fact to promote the information they are suppressing.
To some extent it is already happening, due to conflicts within the political system. The fact that Fauci got scientists to write a paper arguing for views they did not actually believe is now public information thanks to congressional hearings by the party currently out of power. The fact that the administration pressured the media to suppress arguments against their positions is now public information thanks to a lawsuit initiated by the Attorney General of Missouri.
But it wasn’t public information when it was happening. For issues such as lockdowns, mask mandates or attacking Iraq it is important not only that the truth get out but that it gets out fast. If the email correspondence on the lab leak theory had been known when it happened the article would have had little effect beyond persuading anyone paying attention that Fauci could not be trusted. What I am proposing is not a way of keeping the government from pressuring media — I do not think that is possible. It's a way of letting people know that it is happening at the time, not a year or two later when a congressional committee holds hearings or someone sues.
One effect should be to lower the amount of information transmitted to those being threatened about what the government wants them to do. The President can still let Facebook know what the party line is. But detailed instructions along the lines of "get rid of poster X, conceal fact Y, suppress argument Z" require detailed communication. If that communication is public it works less well, may even have the opposite of the intended effect.
Another effect is to let customers who want unfiltered information see what the government is trying to suppress, which social media give in to the pressure, which refuse to — thank you Elon.
The real solution would be a much smaller and less powerful government, a world where the President has as much reason to fear Facebook as Facebook has to fear him. That is not going to happen in my lifetime. What I have proposed is as close as we can reasonably hope to get.
I assume this was a mistake by Doughty. Support of the lab leak theory was the position the government tried to suppress.
Commenters have pointed me at:
A much longer and more detailed article from the Cato Institute supporting essentially the same conclusion.
An essay criticizing Doughty but agreeing that there is a problem.
A list of past posts sorted by topic
A Search bar for my posts and other writings
One point I didn't go into in the post is that if the administration and the people running the social media are ideological allies, no threats are needed. I was reminded of an old poem by Humbert Wolfe:
You cannot hope
to bribe or twist,
thank God! the
British journalist.
But, seeing what
the man will do
unbribed, there's
no occasion to.
The true answer is of course to get the government out of almost everything it sticks its nose into today.
But absent some miracle, mandate that any actions taken by the government against any person or organization must include all communications between the two in the prior 5 years. "Mandate" is working some magic there, but at the very least, it would have to be included in all the evidence the jury sees, and if it's a bench trial, should also include forcing the judge to address all such communications with something more credible than a hand wave.
But that still would be easy to get around.