Judge limits government’s contact with social media companies after GOP states sue

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• Amna Nawaz:

  Welcome to the "NewsHour."

  The questions swirling for the past few years about information and misinformation spread on social media about everything from COVID vaccines to election security have made their way to the federal courts. Several Republican state attorneys general argued the Biden administration went too far to suppress conservative views online.

  And, yesterday, a judge in Louisiana agreed, issuing a sweeping and temporary ruling blocking government officials from communicating with social media companies about so-called protected speech.

  Liz Murrill is the solicitor general of Louisiana. She led the Republican states' legal team, and joins us now.

  Welcome to the "NewsHour."

  I want to put to you, Solicitor General, if I can, what Jamil Jaffer, who's of the Knight First Amendment Institute, said in response to this ruling.

  He said — quote — "It can't be that the government violates the First Amendment simply by engaging with the platforms about their content moderation. If that's what the court is saying here, it's a pretty radical proposition that isn't supported by case law."

  What do you make of that argument?

• Liz Murrill, Louisiana Solicitor General:

  You know, their ad pages of fact-finding by the judge in this case that would that explain why this is so much more than that.

  This is not just the government saying, hey, we don't agree with something somebody said on Facebook or on Instagram or on some other platform. This is about the government engaging in a widespread enterprise to censor people's speech that it disagreed with.

  And so it doesn't matter what side of the aisle you're on. That ought to scare people.

• Amna Nawaz:

  When it comes to content moderation, about dangerous, harmful content online, what do you believe should be the government's role in addressing that?

• Liz Murrill:

  I think the First Amendment establishes where the government's lines are drawn when it comes to what the government can and cannot do.

  And what's shocking about this case is the revelation through 20,000 pages of documents that we obtained in early — the early proceedings in this case that demonstrated that the government not only did not know where to draw that line, but didn't care.

• Amna Nawaz:

  So where do you draw that line, just to press further on that?

  I know there are some exceptions in this ruling, right, where the judge did say the government can flag content about national security threats, foreign attempts to influence elections.

  Do you think they should just be limited to that in terms of the exceptions?

• Liz Murrill:

  Well, I think that's protected — those are — that is speech that is not protected by the First Amendment.

  And then there is speech that is protected by the First Amendment. And the government can't do through the back door what it couldn't do through the front door, so it cannot partner with tech companies to censor people's speech that it disagrees with. And that's what we discovered through — and we're still in the early stages of this case.

  There's probably a lot more documents to come. But we have got 20,000 pages showing that, from the White House, through the FBI, through CISA, through HHS, through the CDC, that there was just a widespread problem where the government was — had moved from — from addressing speech that it disagreed with, which it can do, by the way — it can say, we don't agree with what somebody said on Facebook.

  They can absolutely do that. But what they can't do is cross the line and tell those — through a private pipeline, tell those companies under threat and coercion that they have to take speech down.

• Amna Nawaz:

  Critics have said this is a very broad ruling, that it doesn't necessarily add a lot of clarity to where some of these lines are.

  So I want to ask you how you view some of these issues. We talked about national security threats. What about election misinformation, for example, posts about the 2020 election being stolen, which are provably false, and we know fuel real-world violence? Should the government be able to step in and flag those?

• Liz Murrill:

  You know, we have established jurisprudence on what is protected speech and what's not.

• Amna Nawaz:

  Do you believe this is protected speech, spreading that 2020 election lie?

  (CROSSTALK)

• Liz Murrill:

  I think that the government doesn't get to decide whether people go out on Facebook and say that or not.

• Amna Nawaz:

  So, you…

• Liz Murrill:

  And when the government starts deciding what we can and can't say, we have a huge problem.

  And that's what we saw in this case, that the government actually is quoted in these e-mails as saying that people shouldn't be able to decide their own facts.

  (CROSSTALK)

• Amna Nawaz:

  I just want to be clear here. You're saying you do believe people should be able to spread misinformation about the 2020 election? Is that what you're saying?

• Liz Murrill:

  I'm saying the government doesn't get to decide what it thinks is misinformation.

• Amna Nawaz:

  I have to ask you, because we have seen in studies and reports from the social media companies there has been a lot of an increase in terms of hate speech online in recent years, and many people have said they have been harassed increasingly online.

  We know how easily and quickly harmful content can spread. So what have you seen that leads you to believe these social media companies are capable of moderating that dangerous content themselves?

• Liz Murrill:

  You know, if they're not capable of moderating content — I mean, I think that the companies themselves have set some guidelines.

  The companies, these platforms enjoy a kind of protection that newspapers and radio and television stations do not. They are granted immunity under Section 230. So I think that this is a different — it is a more complicated problem. If they're going to edit and they're going to censor people, then they are — they are essentially not in compliance with Section 230.

  Now they become editors. So does government get to step in and actually forced them to censor speech that government couldn't otherwise censor on its own? That's the real question in this case. It's not about whether these companies are capable of censoring speech adequately on their own. It's whether government under the First Amendment could do it, in compliance with the Constitution, and it can't.

• Amna Nawaz:

  That is Liz Murrill, Louisiana's solicitor general, joining us tonight.

  Ms. Murrill, thank you so much for your time.

• Liz Murrill:

  Thank you for having me.

• Amna Nawaz:

  For another perspective, I'm joined by Genevieve Lakier, a professor at the University of Chicago Law School who studies the intersection of free speech and constitutional law.

  Professor, welcome, and thanks for joining us.

  You have said previously you were surprised by the breadth and the lack of clarity in the ruling. Tell me more about that. What did you mean?

  Genevieve Lakier, University of Chicago Law School: Well, I mean — and this is a little bit of a response to the solicitor general's description of the facts — what's so interesting, but also difficult about this case is that the plaintiffs have alleged a lot of things by a wide variety of government officials.

  This is a very ambitious case that has a lot of different parts. And they went through discovery, which means that they could get some e-mails and a lot of information that about what's actually happening.

  What they found is lots of contact, communication between government officials and the platforms about misinformation and disinformation of various kinds, information — speech that's dissuading people from taking vaccines, speech of that kind, speech that the government for, I think understandable reasons, thinks is harmful.

  What they have not found is anything like an explicit threat by any government official against the platforms, for example, saying, if you don't take this down, we will do X, right, we will harm you in this way.

  What they found is encouragement, pressure in the sense of weekly meetings, monthly meetings, e-mails asking about what the platforms have done about a particular kind of content.

  Now, up until this point, when courts are faced with these kinds of facts, they have typically found that the First Amendment doesn't apply, that this isn't the kind of direct, explicit, serious threat from a government official to a private speech provider or a speech platform that violates the Constitution.

  It's just not serious enough, severe enough. And what's so remarkable and interesting about both the ruling and the injunction is that the court here disagrees. It says, even though we haven't found explicit threats, even though this isn't the kind of coercion that in the past has been understood to violate the First Amendment, it's significant enough, it's repeated enough that we think that there's a likelihood that this is going to violate the First Amendment.

  And on that basis, the injunction now says executive, branch officials, you cannot speak to the platforms, not just you cannot threaten them, but you cannot speak in any way to discourage the circulation of protected speech.

  And that's a very broad ruling.

• Amna Nawaz:

  What does all this mean for how likely we are to see an appeal and how that unfolds?

• Genevieve Lakier:

  Oh, I think it very, very likely that we are going to see an appeal, for two reasons.

  One, the injunction is just really broad. It's going to stop, I think, thousands and thousands of government employees from being able to speak to the platforms. And then, second, it's just very unclear. So, on the one hand, the injunction seems to say you have to change what you would be doing entirely, but it could be read another way to say, everything's fine, just keep going as is.

  And so it's incredibly unclear what it actually means.

• Amna Nawaz:

  So, Professor, what does this mean, in the meantime, in terms of practical implications?

  There are exceptions we saw carved out in the ruling in terms of when government agencies can reach out to those social media platforms. Are they sufficient, do you think, to prevent the spread of harmful or dangerous information?

• Genevieve Lakier:

  Well, I think the exceptions are part of the problem. They are what in part makes the injunction so confusing and unclear.

  I don't know. My guess is that, right now, government officials who are affected by this injunction are just not going to want to speak, that the injunction is going to have — an injunction that is in the name of freedom of speech is going to have this chilling effect on speech. It's just going to be too unclear how — what exactly it means.

  And so I imagine most of the ordinary communication between the federal executive branch, administrative state and the platforms is going to cease at least until the until and unless the appeal. But this is why I think there is going to be an appeal, and soon.

• Amna Nawaz:

  I have just got less than a minute left. But I have to ask you.

  The case is largely based on this argument that conservative speech was being censored online. You have looked at this. I just want to ask what you make of that argument.

• Genevieve Lakier:

  Well, I haven't personally done empirical research on this. But all the studies that have been done have found that, if anything, the opposite is true, that the platforms are worried about being tarred with the brush being anti-conservative, and so, in many cases, will end up — will be more lenient, perhaps, to conservative speech than to other speech.

  That said, it may, in fact, be the case that the speakers who are more likely to violate the rules that have been set online are going to be conservative. They are more likely to be violating what the platform considers to be its health information policies or its disinformation policies.

  And so it might be the case that, even though there's no bias, it's still going to be that the rules are affecting more conservative or right-wing speakers than left-wing speakers. And I think that reflects the fact that what we have here is, in some ways, a culture clash about what the rules for speech should be.

  It may not be that the platforms are acting in bad faith. They may often be applying the rules in a pretty uniform way. But the rules themselves reflect a particular vision of what's the kind of speech that we are going to allow to circulate. And there's disagreement about that. And part of that disagreement, I think, is what is fueling this lawsuit.

• Amna Nawaz:

  That is Professor Genevieve Lakier of the University of Chicago Law School joining us tonight.

  Professor, thank you for joining us.

• Genevieve Lakier:

  Thank you for having me.

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