Do governments have the right or responsibility to combat the spread of false information?

The U.S. Court of Appeals for the 5th Circuit on Friday ruled that the Biden White House, top government health officials and the FBI likely violated the First Amendment by improperly influencing tech companies’ decisions to remove or suppress posts on the coronavirus and elections.

The judges wrote that the White House likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” They also found the White House “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”

The judges detail multiple emails and statements from White House officials that they say show escalating threats and pressure on the social media companies to address covid misinformation. The judges say that the officials “were not shy in their requests,” calling for posts to be removed “ASAP” and appearing “persistent and angry.” The judges detailed a particularly contentious period in July of 2021, which reached a boiling point when President Biden accused Facebook of “killing people.”

The judges also zeroed in on the FBI’s communications with tech platforms in the run-up to the 2020 elections, which included regular meetings with the tech companies. The judges wrote that the FBI’s activities were “not limited to purely foreign threats,” citing instances where the law enforcement agency “targeted” posts that originated inside the United States, including some that stated incorrect poll hours or mail-in voting procedures.

https://www.washingtonpost.com/technology/2023/09/08/5th-circuit-ruling-covid-content-moderation/

It's a tricky area. Things like COVID misinformation seem like no-brainers but it's difficult to imagine that such powers would not be abused. And it is difficult to draw the right lines in the appropriate places. The enormous power of social media companies is not helpful.

Yes.
"To promote the general welfare"

The 5th is a clowshow.

The "threats" part is what concerns me. There should be laws and regulations concerning what consequences the government may and may not pursue for what misinformation. A quack insisting his ditchwater cures cancer and a reporter insinuating the president lied about his golf score are two separate cases.

Otherwise, we live in a democracy. A democracy lives by the informed nature of its populace and has the right to defend itself against misinformation. If we the people want to know the truth then we have the right to empower our government to protect us against falsehoods.

Gut response:
Corona virus yes
Elections no.

But I think non partisan government agencies should provide information to the public about foreign meddling.

The problem is more domestic concerning dark money. I don't see a solution to this anytime soon.

I don't know about that in all circumstances ...

One of the weapons in the Republican dirty trick arsenal is to target majority-Black neighborhoods with materials saying Election Day is a day later than it really is. Should election officials push back against anyone who helps distribute that kind of message?

If it's illegal. Might be.

Agreed. What the 5th circuit thinks of as threats could be anything. Coming from the executive branch, threats of (support for) legislation are fine. Threats of prosecution for something that’s not illegal are not.

IIRC the ‘smoking gun’ was a single Whitehouse staffer (digital director I want to say his title was) in a single email saying to take down some things and also saying ‘Hey, did you know I’ve been appointed to the new executive committee formed to review Section 230 enforcement’. Which I do have to say sounds kinda problematic.

So maybe THAT guy shouldn’t be emailing tech companies. But to say that the government as a whole can’t is just crazy and a huge overreach.

I posted a good podcast (FF even listened to it after a month of hounding - concluding it was not in fact a big deal) a while back. Let me see if I can find it.

Okay, this is the original case I think the 5ths ruling is based on:

On July 4, a federal judge in Louisiana issued one of the most dramatic First Amendment rulings in recent memory. The case involves a variety of individuals, organizations, and conservative state governments who accuse the Biden administration of unconstitutional "jawboning”—that is, informally pressuring social media companies to censor speech, especially about controversial topics like COVID vaccines and election integrity.

Describing the allegations as the "most massive attack against free speech in United States’ history," Judge Terry Doughty enjoined by name dozens of high-level Biden administration officials, and potentially thousands more unnamed government employees, from communicating with social media companies about taking down First Amendment-protected user content.

If the opinion stands, it will have a dramatic effect on the ability of the government to communicate with social media platforms, a practice that administrations of both parties have engaged in for years. Earlier this week, Judge Doughty rejected a motion from the government to stay the injunction pending appeal; the government has since asked the Fifth Circuit to do so instead and, in a sign of how seriously it is taking the ruling, has signaled that it may ask the Supreme Court to step in if the Fifth Circuit does not.

On this episode of Arbiters of Truth, our series on the information ecosystem, Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare, spoke to two of the leading experts on the government's relationship with social media platforms to work through the implications of this decision. Derek Bambauer is the Irving Cypen Professor of Law at the University of Florida Levin College of Law and is the author of an influential law review article on jawboning in the context of internet speech. Jeff Kosseff is an associate professor of cybersecurity law in the United States Naval Academy and a Lawfare contributing editor and the author of numerous books and articles about online speech issues.

Support this show http://supporter.acast.com/lawfare.

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https://podcasts.apple.com/us/podcast/the-lawfare-podcast/id498897343

I don’t see what the executive branch has to do with enforcing Section 230 beyond FOSTA-SESTA. If there is actually CSAM on these websites then the Feds should prosecute regardless. FOSTA-SESTA is a shit law anyway, but if the Feds are using it as leverage to get social media to self-censor unrelated material, that’s a problem.

It’s just hard to imagine that they have sufficient leverage to go after Facebook in that way but not Truth Social, which no one is saying is getting censored, despite being such a font of disinformation.