OPINION: RESTRICTING GOV'T. FROM SPEAKING TO TECH COMPANIES WILL SPREAD DISINFORMATION, HARM DEMOCRACY

By Leah Litman and Laurence H. Tribe, JustSecurity

There is...considerable precedent that recognizes that the government can ask private parties to remove content. That precedent exists for a reason; if it didn’t, the government couldn’t communicate with private parties about their content moderation policies, or whether (hypothetically) foreign governments were trying to make certain content go viral in order to reduce voter turnout, inflame divisions, or make the country less safe. 

There are myriad legitimate and indeed compelling reasons the government might have to ask social media companies to remove content. And the First Amendment certainly doesn’t prevent them from merely asking. 

To treat the First Amendment as creating something like a wall of separation between government and powerful private actors is utterly bizarre. It would 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 district court cited all the precedent supporting this public-private dialogue before cavalierly dismissing it, in part by declaring that “what is really telling is that virtually all of the free speech suppressed was ‘conservative’ free speech.” As if the cases that supported the government all of a sudden didn’t matter because this case involves conservatives?

(One side note: Several of the allegations in the complaint occurred during the Trump administration. Communications between social media companies and government officials happen no matter who’s in power, and the First Amendment is not supposed to lean right or left.)

There is also the fact that the district court 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. Take the allegations concerning hydroxychloroquine. 

On pages 52-53 of the opinion, the district court recites the very serious allegation that the Department of Health and Human Services “suppressed speech on hydroxychloroquine” by having Dr. Anthony Fauci make “statements on Good Morning America and on Andrea Mitchell Reports that hydroxychloroquine is not effective.” 

The next sentence then reports that, after this apparently very coercive Good Morning America appearance, “social-media platforms censored” videos and material that were pro-hydroxychloroquine. 

That must have been quite the Good Morning America appearance. But joking aside: A government official appearing on a television show and stating that certain speech is disinformation does not come even remotely close to the government coercing social medial companies into removing that speech.