A federal judge this week issued an injunction barring many executive branch agencies and officials from communicating with social media services about protected speech. The decision is unreasonably sweeping, and so is the suing state attorneys general’s central allegation: that the government’s actions amount to “the most egregious violations of the First Amendment in the history of the United States.”
Yet the case raises questions worth asking.
The top prosecutors in Louisiana and Missouri contend that President Biden’s administration crossed a line in its attempts to persuade platforms to take down posts the White House feared would deter citizens from getting vaccinated during the coronavirus crisis or pose a threat to the integrity of U.S. elections. The attorneys general claim the efforts are part of an unconstitutional “Censorship Enterprise” designed to suppress conservative speech. The Biden Justice Department, in response, argues that the government should have the ability to try to persuade social media sites to adopt what it believes is responsible policy.
Deep-state conspiracy theories aside, both sides have a point. The government shouldn’t be allowed to sidestep the First Amendment by cajoling social media sites into stamping out speech that the constitution prohibits the government itself from outlawing. These platforms have immense power over what people can and can’t say, and elected officials have immense power over the platforms — to force a breakup or approve a new merger, say, or, as politicians from both parties have repeatedly threatened, to remove the liability shield provided by the legal provision known as Section 230.