Coercive Communication on Social Media: Why the Biden Administration is Trying to Disturbate the Claims of Murthy v. Missouri

That’s “kind of silly,” says former White House counsel Ruemmler, who notes that the president can’t remove existing legal protections for social media companies. Only Congress can do that.

“These are big companies. They don’t scare easy,” he says, adding that there always are competing political imperatives in public policy. “That’s life in the big leagues,” he said at NYU.

The Biden Administration is refuting the assertions of thePlaintiffs in unusual terms. “When I looked at the government’s brief, they did everything but mention the L-word,” says former FBI counsel Weissmann.

At the heart of the Murthy v. Missouri case is that question of coercion versus communication, or whether any communication from the government at all is a form of coercion, or “jawboning.” The outcome of the case could affect how platforms moderate their content and what kind of information they can use to do so, which could in turn affect the proliferation of conspiracy theories online.

The appeals court said that individuals at those agencies likely violated the First Amendment by seeking to coerce social media platforms into moderating or changing their content about COVID-19, foreign interference in elections and even Hunter Biden’s laptop. The Supreme Court is examining the case and has put that ruling on hold.

Wall Street Journal: The Social Media Controversy and the New York State Murder Insurance Case for the Biden Administration, Target and the National Rifle Association

“There is no clear partisan line” in Monday’s case, observes NYU law professor Ryan Goodman. If you’re smart, you’ll see that some politicians have convenient ways of changing sides, depending on the content of the speech.

The Biden administration is accused by the Attorney General in Missouri of being the most massive attack against free speech in United States history. But at the same time, he threatened legal action against Target for selling LGBTQ-themed T-shirts and other merchandise as part of a Pride campaign.

Jameel Jaffar, executive director of the Knight First Amendment Institute, says that presidents of both parties and members of congress talk a lot about social media companies in the public.

Until now, though, the line that has been drawn by the courts is the line between persuasion and coercion. It sounds simple, but as Jaffer observes, “applying that rule is much more difficult than stating what the rule is.”

At issue was a sweeping Fifth Circuit Court of Appeals decision that barred White House officials, FBI officials, CDC and election experts, and officials from other agencies from having contacts with social media platforms. The appeals court decision is on hold pending a Supreme Court decision in the case later in the term, though the court’s three most conservative justices–Clarence Thomas, Samuel Alito, and Neil Gorsuch, would have allowed it to go into effect.

After the court finishes the arguments in the social media case on Monday, it will move on to a second case involving government influence and the First Amendment. The National Rifle Association sued the former head of New York state’s Department of Financial Services.

The Department of Financial Services gave out letters and news releases in an attempt to discourage financial institutions from doing business with the gun rights group because they were investigating the “murder insurance” issue. “Murder insurance,” is a term used to describe insurance that covers the cost of using firearms to shoot another person, and it is illegal in New York. The 2nd U.S. Circuit Court of Appeals dismissed the NRA’s complaint, concluding that the news releases and letters were appropriate government speech, and the NRA then appealed to the Supreme Court.

“When you read between the lines, what was happening was that the companies were feeling enormous pressure from the White House, and they were caving to that pressure. The lawyer Younes claims that the pressure had a negative effect on certain viewpoints.

But the plaintiffs in the case have produced dozens and dozens of quotes from government emails that they say prove the government’s coercive behavior.

The 5th US Circuit Court of Appeals issued a broad ruling last September forbidding key government officials from engaging in contact with social media companies. Among the personnel targeted in the order were officials at the White House, the Centers for Disease Control and Prevention, the Office of the Surgeon General, the FBI and an important cybersecurity agency.

Some vaccine opponents were banned from certain internet platforms, as well as some social media websites, at the height of the COVID-19 pandemic, and are now part of a lawsuit.

The Biden Administration’s Back-and-Forth with the Social Media Companies: A Defense of the First Amendment and Implications for a Global Health Crisis

The Biden administration notes that under established First Amendment precedent, the government itself is entitled to express its views and to try to persuade others. As the government says in its brief, “A central dimension of presidential power is the use of the office’s bully pulpit to seek to persuade Americans—and American companies—to act in ways that would advance the public interest.”

Five individuals and two Republican-dominated states–Louisiana and Missouri–claim that the government is violating the First Amendment by systematically pressuring social media companies to take down what the government sees as false and misleading information. The Biden administration counters that White House and agency officials are well within their rights to persuade social media companies about what they see as erroneous information about COVID-19, or foreign interference in an election, or even election information about where to vote.

Both the Republican and Democratic administrations interact with social media companies regularly, notes the government. The companies reached out to government health agencies for guidance on what they didn’t know and what to say about it.

Ruemmler said she was struck by the lower court opinions because they did not acknowledge that most of the communications related to a global health crisis were between the government officials and the social media companies.

“If you think about what is the purpose of the government, why do governments exist? It’s really to protect the health and safety and welfare of its citizens,” she said during a panel discussion at New York University’s School of Law.

The FBI, along with other federal agencies, have dealings with social media companies. The private companies and the government typically benefit from this sort of back-and-forth.

“Suppose that a person in the Department of Defense gives you information about a terrorist group that wants to kill a State Department employee abroad and also encourages violence against that person,” the text says. Weissman says the general counsel of the FBI would inform the social media company and have a conversation that would go somewhere like this: “I wanted to flag for you, but it seems to us it violates your policy.” Obviously that’s for you to decide, but you can understand why … there is a grave concern on our part.”

The response, most of the time, says Weissmann, is that the social media company is grateful for the information and often takes down the post because it does violate company policy but was missed by the company’s algorithms. Billions of posts per day are on social media platforms, and there is no formula that is perfect.

Louisiana Solicitor General Benjamin Aguiñaga argued that when government officials contact social media companies, even encouraging a particular course of action amounts to unconstitutional pressuring. That prompted this from Justice Barrett: “Just plain vanilla encouragement,” asked Justice Barrett, her voice rising in gentle disbelief. It has to be some sort of significant encouragement because it would sweep in an awful lot.

President Biden made a statement at the height of the swine flue that unless you change your policies, you’re responsible for the deaths of other people. Justice Gorsuch wanted to know if it was considered to be coercion if a government official made an accusation that unless you change your policies, you’

He admitted that it is not impossible, but said it was hard to imagine a public statement being coerced. “All I’m saying is it didn’t happen here,” he said. “The president said this to the public during the middle of a flu season, and then three days later he said that it’s important,” he said. He said he wasn’t saying Facebook is killing people. I’m suggesting that the people are spreading misinformation.

Several justices questioned the record in the case. Justice Kagan had not seen a single item that supported barring government contacts. Justice Supreme Court Justices told Aguiaga, “I have a problem with your brief counselor.” You don’t tell the whole truth about some of your claims. You attribute things to people who it didn’t happen to… I’m not sure how we can prove injury in any way.

Aguiñaga agreed that “as a policy matter, it might be great for the government to be able to do that, but the moment that the government identifies an entire category of content that it wishes to not be in the modern public sphere, that is a First Amendment problem.”

“The purpose of the contact was to stop a game that is harming children around the country and they say I encourage you to stop that,” said my colleague.

Justice Ketanji Brown Jackson asked about matters of public safety. Young people could be hurt or killed because of a new online fad that called for jumping out of windows. Couldn’t the government legitimately ask platforms to take that down.

What about the classified information is being published? Are you suggesting the government can’t try to get that taken down? Or what about factual inaccuracies?

What Happened When Social Media and Print Communicated: The Ten Ten Reasons Why You Shouldn’t Do That Now, Just Before You Let It Happen

Aguiaga only claimed that pressuring print and other media was different from pressuring social media platforms.

She and Justice Amy Coney Barrett postulated that the FBI might contact social media companies to tell them that, while they may not realize it, they have been posting information from a terrorist group aimed at covert recruitment.

“Like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech,” Kagan said, to laughter. “You just wrote a bad editorial — here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors — here are the 10 reasons why you shouldn’t do that again. This is happening thousands of times a day in the federal government.

“I had … experienced government press people throughout the federal government who regularly call up the media and berate them,” said Kavanaugh, though it was unclear if he was the berating target or perpetrator.

Two justices who were in the White House and worked for the president were the most vocal about their past contacts with media companies.

Alito and Clarence Thomas were friendly with the states. Thomas asked if the states could make their case even without proving the coercion if they could show the government coordinated with the platforms. Aguiñaga said they could. Alito tried to steer the discussion of the states argument back to a more pointed question.

Conservative Justice Neil Gorsuch also expressed frustration with what he called an “epidemic” of “universal injunction[s],” questioning the remedy offered by the lower court, which sought to block a large swath of communication. Aguiñaga responded that the breadth of the injunction reflects that “the breadth of the government’s enterprise in this case was extremely broad.”

The government and platforms want to partner on issues such as covid, though it seems strange to him. Fletcher said that’s a function of the unusual circumstances in a scenario like the pandemic, where platforms chose to advance good information and reach out to the government, so in that case, “it’s an open door.”

ConeyBarrett interrupted and asked how often the FBI makes those types of calls after Aguiaga said he was a libertarian.

Jackson proposed a scenario where platforms take something down, but Chief Justice Roberts asked whether it would be a rise to the level of coercion. He said Jackson’s example was an instruction for a dangerous game and not about eliminating a viewpoint.

Jackson said, “My biggest concern is that you have a First Amendment that undermines the government in significant ways in the most important time periods.” I heard that the government can post its own speech, but if I were you, I would want my children to not do it.

“I think they absolutely can say, ‘This is a problem, it’s going rampant on your platforms,’” Aguiñaga said. When the government tries to use its power as the government to get someone to take it down, that is when you are interfering with third-party speech rights.

But several justices seemed skeptical of the arguments from Louisiana Solicitor General Benjamin Aguiñaga, who argued on behalf of the states and individual plaintiffs who challenged the Biden administration on its communications with social media companies. The justices appeared to worry about the far-reaching consequences of limiting the ways the government is able to speak with tech platforms.

In a statement released in May 2022, when the case was first filed, Missouri attorney general Eric Schmitt alleged that members of the Biden administration “colluded with social media companies like Meta, Twitter, and YouTube to remove truthful information related to the lab-leak theory, the efficacy of masks, election integrity, and more.” The lab-leak theory has largely been rejected and most evidence points to Covid-19 coming from animals.

While free speech should not be regulated by government agents, there are places where it is possible for government agencies to have access to information that can help make moderation decisions. The foundation filed an amicus brief on the case. “The CDC should be able to inform platforms, when it thinks there is really hazardous public health information placed on those platforms,” he says. They need to think about how to inform without coercing them.

Children’s Health Defense (CHD), an anti-vaccine nonprofit, was formerly chaired by now presidential candidate, Robert F. Kennedy, Jr. The group was banned from Meta’s platforms in 2022, for spreading health misinformation, like that the tetanus vaccine causes infertility, because of the company’s policies. A spokesperson for CHD referred WIRED to a press release, with a statement from the organization’s president, Mary Holland, saying “As CHD’s chairman on leave, Robert F. Kennedy Jr. points out, our Founding Fathers put the right to free expression in the First Amendment because all the other rights depend on it. In his words, ‘A government that has the power to silence its critics has license for any kind of atrocity.’”