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Judge blocks U.S. officials from tech contacts in First Amendment case

A federal judge on Tuesday blocked key Biden administration agencies and officials from meeting and communicating with social media companies about “protected speech,” in an extraordinary preliminary injunction in an ongoing case that could have profound effects on the First Amendment.

The injunction came in response to a lawsuit brought by Republican attorneys general in Louisiana and Missouri, who allege that government officials went too far in their efforts to encourage social media companies to address posts that they worried could contribute to vaccine hesitancy during the pandemic or upend elections.

The Donald Trump-appointed judge’s move could undo years of efforts to enhance coordination between the government and social media companies. For more than a decade, the federal government has attempted to work with social media companies to address criminal activity, including child sexual abuse images and terrorism.

Over the past five years, coordination and communication between government officials and the companies increased as the federal government responded to rising election interference and voter suppression efforts after revelations that Russian actors had sowed disinformation on U.S. social sites during the 2016 election. Public health officials also frequently communicated with the companies during the coronavirus pandemic, as falsehoods about the virus and vaccines spread on social networks including Facebook, Twitter and YouTube.

“The injunction is strikingly broad and clearly intended to chill any kind of contact between government actors and social media platforms,” said Evelyn Douek, an assistant professor at Stanford Law School.

The injunction was a victory for the state attorneys general, who have accused the Biden administration of enabling a “sprawling federal ‘Censorship Enterprise’” to encourage tech giants to remove politically unfavorable viewpoints and speakers, and for conservatives who’ve accused the government of suppressing their speech. In their filings, the attorneys general alleged the actions amount to “the most egregious violations of the First Amendment in the history of the United States of America.”

The judge, Terry A. Doughty, has yet to make a final ruling in the case, but in issuing the injunction, he signaled he is likely to side with the Republican attorneys general and find that the Biden administration ran afoul of the First Amendment. He wrote that the attorneys general “have produced evidence of a massive effort by Defendants, from the White House to federal agencies, to suppress speech based on its content.”

The ruling could have critical implications for tech companies, which regularly communicate with government officials, especially during elections and emergencies such as the coronavirus pandemic.

In his order, the judge made some exceptions for communications between government officials and the companies, including to warn them of national security threats, criminal activity or voter suppression. Douek said the list of exemptions underscored that there were difficult issues at stake in the case, but that the order lacks clear guidance about “where the lines are.”

A White House official said the Justice Department “is reviewing the court’s injunction and will evaluate its options in this case.”

“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,” the official said. “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.”

Google, which is among the companies named in the suit, did not immediately respond to a request for comment. Facebook parent company Meta declined to comment, and Twitter did not respond to a request for comment.

The judge’s order puts limits on some executive agencies with a variety of responsibilities across the federal government, including the Department of Justice, State Department, Department of Health and Human Services and the Centers for Disease Control and Prevention. It also names more than a dozen individual officials, including Department of Homeland Security Secretary Alejandro Mayorkas and Jen Easterly, who leads the Cybersecurity and Infrastructure Security Agency.

In addition to limiting the government’s communications with tech companies, Doughty also prohibited the agencies and officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” key academic groups that focus on social media, including the Election Integrity Partnership, a coalition of researchers led by the Stanford Internet Observatory and the University of Washington Center for an Informed Public. House Republicans have also been demanding documents from these academics, amid accusations that they have colluded with government officials to suppress conservative speech.

The lawsuit marks a critical inflection point in a years-long, partisan battle over speech on social media. For years, Republicans have argued that social media companies’ policies to address disinformation related to elections and public health have resulted in the unfair censorship of their political views. Meanwhile, Democrats have argued that the companies have not gone far enough in policing their services to ensure they do not undermine democratic institutions.

The lawsuit brought by the Louisiana and Missouri attorneys general is at the forefront of a broader GOP effort to allege that the Biden White House is putting “unconstitutional” pressure on the tech companies to eliminate disfavored views online. Such accusations have been fanned in multiple lawsuits, as well as in congressional hearings and probes in the Republican-led House of Representatives.

But the lawsuit marks a new twist in Republicans’ complaints that tech companies are silencing their views. Instead of targeting the tech companies, which say they have a First Amendment right to decide what appears on their sites, the lawsuit targets the federal government’s role in that process in the most successful legal effort to date to counter tech company moderation efforts.

The Republican state attorneys general argue that the Biden administration ran afoul of the First Amendment by threatening legal action against the tech companies amid disputes over speech on the platforms. Their complaint cites occasions when the Biden administration threatened to take antitrust action against the companies or undo Section 230, a legal shield that protects tech giants from lawsuits.

“The deep state planted a seed of suppression of government censorship, but that seed was fertilized, germinated and grew rapidly once President Biden took office,” Missouri Attorney General Andrew Bailey said in an interview with The Washington Post before the decision.

“Deep state” refers the unsubstantiated idea, frequently invoked by Trump, that a group of bureaucrats is working to undermine elected officials to shape government policy.

The Trump administration made similar arguments during battles with the social media companies — and at times went further. In 2020, Trump signed an executive order that directed the Federal Communications Commission to rethink the scope of Section 230. That order came in the same week Twitter applied fact-checking labels to two of Trump’s tweets.

The Biden administration disputes the Republicans’ claims, arguing that the communications that the GOP officials uncovered reflect the government using its bully pulpit to promote accurate information in the face of foreign interference in elections and a deadly virus.

Justice Department lawyers argued during a May hearing that the Republicans’ accusations were laced with “hyperbole,” according to a court transcript. They also warned that an injunction could undermine national security efforts, since the Republicans’ lawsuit critiques multiple programs that were established to respond to evidence that Russian actors exploited American social networks to sow disinformation in the fallout of the 2016 election.

The Republicans’ case hinges on tens of thousands of communications, including emails and messages, between Biden administration officials and social media companies, largely occurring between 2020 and 2021. The state attorneys general have argued that starting in 2017 — four years before Biden was president — officials within the government began laying the groundwork for a “systemic and systematic campaign” to control speech on social media.

These efforts accelerated in 2020, while Trump was still president, amid the response to the coronavirus outbreak and efforts to secure the 2020 election, the attorneys general argued in court. They said those endeavors took a “quantum leap” forward once Biden became president, as the White House both publicly and privately pressured major tech companies to remove posts that could contribute to vaccine hesitancy, while at the same time threatening to regulate the social media companies.

Some individuals who think their posts were unfairly censored by social media companies joined the Republican state attorneys general in the lawsuit. They include Jim Hoft, owner and operator of the Gateway Pundit, a conservative website. Hoft alleges that his social media accounts were suspended in response to comments he made about coronavirus vaccines and mail-in ballots. Another plaintiff, Jill Hines, alleges she was “censored” because she opposed mask mandates for young children.

Doughty’s order comes as social media companies recently have begun to unwind some of the programs created to address disinformation. Under Elon Musk’s ownership, Twitter has made steep cuts to its Trust and Safety division and has increased its reliance on Community Notes, its program of crowdsourced fact checks on tweets. Meta, the parent company of Facebook and Instagram, has laid off staff working on content moderation amid financial pressure.

In his interview with The Post, Bailey praised these recent moves.

“There are deep concerns here that the government’s unrepentant attitude demonstrates a willingness to continue to violate the First Amendment,” he said. “That’s why this wall of separation is so important, regardless of the steps that Big Tech is taking independent of our lawsuit.”

Tyler Pager and Will Oremus contributed to this report.

This post appeared first on The Washington Post

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