A new story from Bloomberg Law


The Surgeon General, the CDC, and the FBI likely violated free speech rights by coercing social media platforms to take down posts on their sites at times with intimidating messages and threats of adverse consequences. White House Press Secretary Corrine Jean -Pierre has said that communications by Biden officials with the social media companies was not coercive. We have promoted responsible actions to protect public health safety and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections, and we have consistently made clear that we believe social media companies have a critical responsibility to take account of the effects of their platforms that they have on the American people while making independent decisions about the content of their platforms. Joining me is Professor Eric Goldman of the Santa Clara University School of Law. He's also a co -director of the High Tech Law Institute. Eric, what was main the issue in the Fifth Circuit case? The basic question is when were conversations that were taking place between the government and social media services becoming so coercive or so that directed the social media services were doing the government's bidding and removing content of their direction? Did the Fifth Circuit find that there were actual threats made to social social media companies? It did, but the threats are always a little bit vague. It's not always as easy as, you must do X or we will throw you in jail. The threats are often more indirect and that's one of the many challenges from this opinion. It wasn't entirely clear to me exactly which threats mattered or when they even became threats. And what did the injunction specifically prohibit Biden administration officials from doing? The actual implementation of the injunction is no more clear than before the opinion. What the court said is that certain branches of the government, specifically they called out the White House and the FBI must comply with the rules articulated in the court, but the court didn't provide concrete boundaries around those rules. simply It said, you must comply with the Constitution. So in a sense, I don't know how the executive branches are going to implement what the court's ordering them to do, because it's insane comply with the Constitution, but obviously the people who made those decisions in the first place weren't clear what was constitutional, what the Constitution, and they're going to learn clearer now. It also says they can't significantly encourage platforms to move lawful content. So what does significantly encourage mean? Exactly. That's the point. The encouragement significant is the boundary around the constitutional protections. In other words, if they're significantly encouraging the removal of constitutional content, that's not constitutional. That's violation a of the First Amendment. However, what constitutes a significant encouragement is not made clear by the opinion. They do point to a few examples, but I don't think I would know how to actually interpret that language. What's likely to happen is that if this opinion stands, the regulated entities are going to become far less conversational with the social media services. They're not going to take a chance about violating the rule. So the court standard actually clears out a lot of permissive behavior today because the boundary is so unclear, people are going to on err the side of being cautious. Well, that's what the Republicans who brought this case want, isn't it? The Missouri AG Andrew Bailey said that the ruling was another brick in the wall separation between tech and state. No doubt many people wish that the government would not be in conversations with social media services. And yet, the court's opinion really casts a shadow over dialogues that take place every day, all the time, throughout our entire country, between governments and private entities, not just social media services. This concern about significant encouragement or coercion comes up across the board in lots of spaces. And the Christian standard puts potentially many or all of those in play, opens up the door for lots of people to challenge government conversations that are just in public health and safety interests. Government's just trying to do its job to protect its citizens. And now, this court casts a doubt on the legitimacy of those efforts. The Biden administration had said that it was pushing social media companies to just adhere to their own rules about content. Did you see a First Amendment violation here? There's no doubt that some individual employees of the government pushed the frontiers perhaps to or over the limit. That's just the nature of individual government employees so zealously trying to do their job, they might get a little bit excited. Having said that, I think that, overall, none of the social media services appreciate the feedback from the government. They want to hear from the government because the government sees things that they don't or is a good neutral source of assessing risks in the community that need to be addressed. It's helpful for the social media services to hear from the government the risk that the government is assessing, what might be done to address those risks. That's actually helpful and that forms the social media services' own independent editorial discretion. The line between that kind of activity and the overzealous pushing by some government employees is really thin and we want fewer of the overzealous stuff but we definitely want the other stuff to and continue that's the part that I don't think the government employees are going to know where they are on that spectrum. I thought it was interesting that Dr. Anthony Fauci who came under such criticism from conservatives COVID, during you know, the Fifth Circuit said no, he did okay, he was fine. Yeah, I think the Fifth Circuit was trying not to engage in partisan Fauci was the target of conservative ire and so they weren't pandering to that ire and and yet the entire structure of the opinion really does validate a lot of the conservative objectives in a way that I think fundamentally undermines public health and safety. So it's kind of like what do we really want from the government and I don't know that I share the Fifth Circuit's

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