Social Media Censorship: Balancing False Information and Free Speech

In social media, the battle against false information rages on. The recent decision by a three-judge panel from the U.S. Court of Appeals for the 5th Circuit has sparked a debate on the fine line between combating falsehoods and safeguarding free speech online.

The Impact of the 5th Circuit Ruling

The court's ruling carries significant implications. It effectively hinders one of the few tools available to address false speech on the internet.

The decision states that federal entities, including the White House, the FBI, the surgeon general’s office, and the Centers for Disease Control and Prevention, are barred from communicating with social media platforms to urge the removal of false content.

False Speech and Its Consequences

False information disseminated through the internet and social media channels can have dire consequences, even leading to loss of life. This case primarily revolved around concerns of the federal government regarding the spread of misleading information related to COVID-19 and vaccines on social media. Government officials were rightly alarmed that unfounded claims by anti-vaxxers could deter vaccination efforts, putting lives at risk.

The Lawsuit and Injunction

The lawsuit against the Biden administration was filed jointly by Louisiana and Missouri, along with a website owner and four individuals with various grievances against the government, including its COVID-19 policies. Initially, a federal district judge in Louisiana had issued an injunction against the White House and several federal agencies.

The 5th Circuit's Verdict

In its ruling, the 5th Circuit Court reversed the injunction against several federal agencies, including the departments of State, Homeland Security, Health and Human Services, and the National Institute of Allergy and Infectious Diseases. However, it retained a substantial portion of the injunction for these four agencies.

First Amendment Concerns

The court's decision leaned on a 1963 case that involved the government's threats of obscenity prosecutions against booksellers, asserting that government coercion infringes on the First Amendment. However, crucially, there is no concrete evidence that the Biden administration ever threatened social media companies with prosecution or any form of enforcement action.

Examining the Allegations of Coercion

The court contended that administration officials "threatened — both expressly and implicitly — to retaliate against inaction," mentioning potential legal reforms and enforcement actions. Nonetheless, this falls short of coercion. At no point did the government explicitly warn social media companies that they were violating the law and would face penalties if they failed to comply with content removal requests.

First Amendment and Content Moderation

The court also argued that the administration violated the First Amendment by encouraging platforms to engage in content moderation of false speech. It concluded that officials "significantly encouraged the platforms to moderate content by exercising active, meaningful control over those decisions." However, there's no clear evidence in the opinion that shows the government exercised such "control" over social media content. Encouraging platforms to remove false content, in itself, doesn't constitute a First Amendment violation.

The Principle of Platform Autonomy

The panel firmly declared that "social-media platforms’ content-moderation decisions must be theirs and theirs alone." While this principle is valid, it's ironic, given that the same court upheld the constitutionality of a Texas law last year that restricts internet and social media platforms from engaging in content moderation. This creates a significant contradiction in the court's stance.

Awaiting Supreme Court Review

A petition for a Supreme Court review of last year's case is currently pending. Similarly, the Supreme Court will likely be asked to review Friday's ruling on an expedited basis. The 5th Circuit panel has delayed the implementation of its decision for ten days to allow time for Supreme Court consideration.

The Path Forward

In both cases, the Supreme Court has the opportunity to clarify that internet and social media companies have the right to decide on the content displayed on their platforms. This would render the Texas law prohibiting content moderation unconstitutional. However, it should remain constitutional for the government to encourage the removal of false speech from social platforms, as long as no coercion is involved.

Striking a Balance

The challenge at hand is to find effective ways to combat the spread of false information that poses risks to public safety without compromising freedom of expression. Government identification of false speech and notification to social media companies is a reasonable approach to address this issue.