On Tuesday, a Louisiana federal judge ruled that the Biden administration could not quietly contact social media sites like Twitter and Facebook to remove protected free speech.
Some saw this as bad news for the removal of “misinformation” or, in the words of The New York Times, government “efforts to combat false and misleading narratives.”
We say: The judge, who shrewdly issued his ruling on Independence Day, was right.
Government should not be in the business of censoring what American’s have to say on their social media platforms.
Much of this brouhaha dates to the COVID-19 crisis, a challenging period for free-speech advocates and an emboldening era for those public health officials who argued the need for consistent messaging as a tool for saving lives. Those officials quickly realized that vaccine skeptics, lockdown protesters and other dissenters were muddying the waters on social media platforms and generating significant followings and they were concerned that what they saw as “misinformation” would only worsen the crisis.
All of this was understandable in that emergency context when no one knew how the COVID-19 crisis was going to play out, and, frankly, when the full power of social media was only just being understood. And even now, having groups of advocates that pressure social media channels to remove what they see as damaging information is perfectly reasonable. Those groups are expressing their own rights to free speech and, as private entities, the social media channels can and should have their own rules on what they do and do not permit.
We advocate for responsibility on the part of Twitter, Facebook and Snapchat, just as a good newspaper takes care over what it does and does not publish.
But that’s not what this case is about. The problem came up when the Biden administration opened up a back channel to sympathetic senior employees at Twitter. White House operatives openly pointed out problematic posts that they wanted taken down. In the words of the judge, government officials should not have been “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
There is ample evidence that such conversations took place. Elon Musk, Twitter’s new owner, has referenced them. They also have come up in discovery findings in an ongoing lawsuit involving Alex Berenson, a vaccine and lockdown skeptic on Twitter whose content really stuck in the Biden administration’s craw.
On the face of it, Judge Terry Doughty’s remarks represent a First Amendment no-brainer. It’s certainly understandable that some of that content irritated the Biden administration, which saw it as harmful to public health. But as anyone who has lived in a society where the government controls all the messaging will tell you, that irritation is a price worth paying for allowing free persons to express dissent. That should not be a liberal or a conservative stance, but an American one. And it applies even in a time of national crisis.
Much as we would like to believe otherwise, there is not one “science” to trust. And, as was the case during COVID-19, if authorities try to suppress dissent, it tends merely to embolden it. In a free society, people have to be able to hear all sides, judge who they think can be trusted for themselves and navigate the free marketplace of ideas. Such is the choice Americans made long ago.
So for that reason, we’ve been perplexed by some of the media hand-wringing over Tuesday’s decision. Take, for example, The Associated Press report that suggested in its news story that the decision was “raising questions about what officials could even say in public forums.”
We don’t see the decision that way at all. Government officials have free speech rights, too, and they are free to criticize individuals in public forums. The U.S. surgeon general, for example, is free to hold a news conference declaring some sources untrustworthy or even dangerous to public health. Commanding that kind of bully pulpit is part of the job, just as it is to go after unhealthy products.
The problem only arises when someone in public office decides not just to criticize what someone else is saying, but to try to prevent its very utterance by sending an email to, say, Twitter, saying, ‘Hey, you might want to take a look at this post with a view to taking it down.”
A private individual can attempt to do that. A government official should not. So says our Constitution.
But what about “misinformation” in a crisis? Might allowing such speech not cost lives? The framers saw that issue differently, believing that protecting free expression was, in the long run, the best protection that could be afforded an American.
Looking back on COVID-19, most reasonable people can see both sides of the dilemma. Many in government were so infuriated by the new power of disinformation that they convinced themselves that its curtailment was the only way to prevent mass deaths in a health crisis with an uncertain and terrifying trajectory.
Some forgiveness and tolerance is in order. But the First Amendment is the First Amendment.
