A federal judge just ruled against the government’s social media censorship campaigns. But there’s one big loophole

First we suspected the government was pressuring social media companies to censor posts by everyday Americans on their platforms. Then, thanks to Elon Musk releasing the Twitter Files, we got proof. Yet, bizarrely, many Republican and Democrat politicians responded by attacking the social media companies and passing bills to curtail their freedom of speech instead of going after the government agents pushing for censorship. It was weird.

But, finally, we’re seeing some progress in the right direction. This week, a federal judge issued a preliminary injunction that bans the Biden administration from contacting social media companies about removing “content containing protected free speech.” The order pertains to a slew of federal agencies as well as over a dozen officials named in the motion.

The injunction bans government actors from “specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.”

At first blush, this is exactly the kind of action many of us have been hoping for. Consistent supporters of free speech acknowledge that private businesses have every right to moderate content on their platforms, which are their property, as they see fit. We may not always like the decisions of social media companies—and are free to harshly criticize them—but we stand for their constitutional right to exercise their own freedom of speech and association as they choose.

However, the government has no right to censor Americans, whether it be everyday users of the social media sites or the business owners themselves. And increasingly, the government has been doing that through a process known as “jawboning” to industry insiders.

Essentially, jawboning is a method of pressuring companies to do the government’s bidding without actually passing a law that mandates those actions. It creates an environment where the government can get away with unconstitutional things and impose regulations or other restrictions on our freedom that they either can’t get enough votes to make into a law, or that are illegal and the courts would not uphold.

When a government agent says “you really should do this or there might be consequences,” companies will often do what they say. If they don’t comply they might find they are suddenly facing antitrust lawsuits by the FTC. Or, maybe the IRS begins to audit them aggressively or presents other hassles. Perhaps regulators begin to find compliance issues with the endless number of regulations on the books and the company is suddenly facing a lot of fines. You get the thuggery going on?

Yet because there is no law, the companies often have no recourse when they’re facing “jawboning.” They can’t challenge anything in courts, because nothing exists on paper—the government agents can say, “we were merely making a suggestion.” But it’s not a suggestion, it’s a threat and we all know it.

So the judge’s injunction seems to be a welcome relief for these platforms that have been trapped between a rock and a hard place on free speech issues for years. But a closer analysis reveals there may still be a long road ahead.

The injunction makes an exception in the communication ban for efforts to curb illegal activity or address national security threats. Which I will begrudgingly admit, is a needed exception. But even by the White House’s statement on the motion, one can already see plainly how the government will likely use this exception to carry on doing exactly what they’ve been doing.

“This Administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections. Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people, but make independent choices about the information they present,” the statement read.

As Robby Soave pointed out at Reason, “When national intelligence officials cautioned social media companies about [the] New York Post's Hunter Biden laptop story, for instance, they cited the threat of foreign election interference. Efforts to purge social media of so-called Russian bots—which was, in actuality, a crackdown on legitimate speech, expressed by Americans—were conducted under the auspices of malicious activity prevention.”

The government, especially under the current administration, is pushing the notion that disinformation is in and of itself a threat to national security—and they of course get to decide what is and isn’t disinformation. Remember, they even tried to make a whole disinformation agency not all that long ago?

So while the exception is likely necessary, it also provides a hole big enough to get a whole army through. It might make the injunction little more than another piece of paper confirming we have the right to free speech in this country. At the very least, whatever impact this ruling is having will be lessened because of the exception.

At the Cato Institute, Will Duffield suggested there may be a better approach, “Outright prohibitions struggle to find workable lines. Beyond the facts of specific cases involving particular government demands, there might not be a goldilocks zone of viable general prohibitions on government communication with private platforms.”

He continued, “Disclosure is a better approach. If we cannot establish rules to cover every case, we can expose government requests to public scrutiny. On the margin, officials will refrain from sending bullying messages if they know that they will be made public. When jawboning implicates particular speakers, a disclosure regime will make it far easier for them to bring suit.”

Sunshine does tend to be the best disinfectant. At the very least, disclosure requirements would give the public and business owners some ability to hold rogue government officials accountable for their actions. 

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