Here's how to stop government end-runs around the First Amendment

House Judiciary Chairman Jim Jordan (R-Ohio) just released yet another batch in a series of emails revealing a disturbing pattern of pressure by White House officials on Facebook and Instagram to suppress constitutionally protected speech.

The First Amendment bars government officials from directly censoring the targeted speech, but it equally bars them from indirect censorship by deputizing social media companies to carry out their censorship agenda. 

The released emails underscore the need for legislation that requires government actors to be transparent about their requests to social media platforms. 

Social media companies have their own First Amendment rights and enjoy broad latitude to decide what expression to host. The government may encourage them to use that discretion, but when government contacts go beyond persuasion to coercion, the government’s actions violate the First Amendment.

As our discourse increasingly occurs on private platforms, it is critical to prevent government from making such end-runs around the First Amendment. 

The line between appropriate dialogue and unlawful coercion can be difficult to pinpoint. But it was almost certainly crossed in the disclosed dealings with Facebook. In one damning exchange, Facebook’s president of global affairs asks, “Can someone quickly remind me why we were removing — rather than demoting/labeling — claims that Covid is man made…?” The response from a Facebook vice president responsible for content policy: “We were under pressure from the administration and others to do more…We shouldn’t have done it.”     

The “pressure” that induced Facebook to remove content that it “shouldn’t have” included veiled and sometimes not so veiled official threats to subject it and other social media platforms to sanctions, including the removal of immunity for third-party content under existing federal law.  

Critics of the administration aren’t the only ones who should be troubled by these revelations. Biden supporters, including those who agree with his positions on the pandemic, should be equally alarmed when powerful government actors use backchannels to pressure private entities to censor expression. After all, the Biden administration was not the first to use the weight of its office to lean on the private sector to suppress constitutionally protected expression, nor will it be the last. 

According to a former Twitter employee turned whistleblower, in 2019 then-President Trump urged Twitter to remove a tweet from model Chrissy Teigen that the president was a “pussy ass bitch.” A report by the Judiciary Committee found that during the Trump administration, the Cybersecurity and Infrastructure Security Agency — part of the Department of Homeland Security — “routinely reported social media posts that allegedly spread ‘disinformation’ to social media platforms.” 

But anyone who might concur with both administrations that the targeted “disinformation” was undesirable — though fully lawful — should consider how government officials exercise their speech-suppressive powers over private sector actors elsewhere.

This summer, seven Republican state attorneys general incorrectly warned Target executives that their sale of Pride-themed merchandise might violate state obscenity and child protection laws. Their letter, which refers to this sale as a "comprehensive effort to promote gender and sexual identity among children," not so subtly implied that the states’ top law enforcement officers could take legal action if Target continued to sell merchandise containing such First Amendment-protected slogans as "Girls Gays Theys," and "Satan Respects Pronouns."

More jarring was the fact that the letter was sent on the very day some of its signatories — including Missouri’s attorney general — celebrated the Missouri v. Biden decision, in which a federal court ordered several federal agencies and officials to stop pressuring social media platforms to delete or suppress posts on topics including the pandemic, the 2020 election, and Hunter Biden’s laptop. (Central aspects of the preliminary injunction were upheld Friday by the U.S. Court of Appeals for the Fifth Circuit.) 

As this incident illustrates, government officials, along with most of society, tend to support free speech in an inconsistent, result-oriented manner. But experience demonstrates that the only long-range security for messages we favor is to steadfastly defend the same free speech principles for messages we abhor.  

This lesson is certainly clear in the context of the “disinformation” targeted by the Biden administration — namely, communications that it views as false or misleading, but that are nevertheless protected by the First Amendment. Trump used a different label for the same concept — “fake news” — but he applied it to a different set of content.  

In our democratic republic, it is for us, the people, to determine which constitutionally protected speech we choose to listen to. The government must not usurp such fundamental choices, either directly or indirectly, by deputizing private-sector censors.

Few would dispute that the proliferation of inaccurate information can pose serious public policy problems. But it is both futile and counterproductive to suppress unreliable online information. It is nearly impossible to fully scrub an idea from the internet, and attempts to do so only broaden their allure. Moreover, history — including very recent history — proves that common assumptions sometimes fail the test of time. 

The better approach for pursuing truth is robust discussion and debate. 

Useful guidelines for constraining government interactions with private companies about content moderation, consistent with free speech tenets, are set out in the Santa Clara Principles, formulated by a broad coalition of organizations, advocates, and academics. Those principles maintain that government officials mustn’t “manipulate companies’ content moderation systems to censor…”  To hold both officials and companies accountable, the principles call upon both parties to report “any state involvement in” content moderation.  

Officials of all political persuasions will be tempted to chill online expression if they can do so behind closed doors. Legislation requiring transparency for government attempts to influence social media’s content moderation practices will go a long way to curtail abuses and restore public trust.  

Nadine Strossen is past president of the ACLU and senior fellow at the Foundation for Individual Rights and Expression. Joe Cohn is FIRE's legislative and policy director.