Why Are Government Social Media Takedown Requests Secret? Make Them Public

By Michael W. McConnell

While most Americans were engaged in Fourth of July festivities, U.S. District Judge Terry A. Doughty in Louisiana shot off a different kind of fireworks. Finding “substantial evidence” that the federal government has conducted a “far-reaching and widespread censorship campaign” to pressure social media companies to suppress speech critical of government policy, Doughty issued a preliminary injunction forbidding a wide range of federal officials from communicating with social media companies to urge the removal or demotion of constitutionally protected speech (not including national security, criminal activity and certain other topics).

The political world responded in its usual bipolar way: one side cheering the court for shutting down what the court called an “Orwellian ‘Ministry of Truth,’” and the other side warning of the waves of disinformation that will spew out of social media if the government does not work with social media companies to identify and suppress what it regards as “misinformation” and “disinformation.”

The Justice Department has already announced an appeal.

The district court’s First Amendment reasoning certainly pushes the envelope, and might well be overturned or narrowed on appeal. The First Amendment does not limit the power of private media companies to refuse to disseminate speech they deem objectionable, even if that speech is constitutionally protected in the sense that it could not be prohibited or punished by the state. Nor does the Constitution prevent the government from identifying what it thinks is “disinformation,” and using noncoercive means to persuade private parties to restrict its spread.

The judge correctly recognized that First Amendment protections kick in only when the government “has exercised coercive power or has provided such ‘significant encouragement,’ either overt or covert, that the choice must be deemed to be that of the State.”

The trouble is that the line between lawful government suasion and unlawful government coercion is paper-thin. In a world where government agencies wield significant discretionary regulatory authority, media companies might be fearful of government disfavor if they do not comply with government requests, even absent direct threats. Conversely, it seems likely that, in many cases, the companies were happy to cooperate, sharing the underlying values and goals of the administration in power. Company executives are likely to testify that they acted in accord with their own judgment — making the case for government coercion difficult to prove.

Moreover, the record shows that in a surprising number of cases, social media executives pushed back against government demands to remove or demote problematic messages. Indeed, according to the court, the FBI had only a 50 percent success rate in having alleged election disinformation removed or downgraded. This suggests that governmental anti-misinformation efforts might be less effective than their proponents hope or their detractors fear.

Still, the district court’s summary of the evidence and allegations in the case performed a public service. Most of the government actions reported in the decision were performed in secret, and became public only as a result of discovery in the case. Few Americans could have known just how frequent and extensive were the government’s efforts to influence what could be said over social media.

In some instances, even after the companies explained why messages to which the government objected were not in violation of their publicly stated guidelines, the officials continued to press for action and demanded that the companies inform the government what they had done in particular instances.

In some areas of controversy — such as the lab-leak theory for the pandemic’s origins or the authenticity of the Hunter Biden laptop — it is difficult to see how the public interest could be harmed by public discussion, whether or not the opinions expressed were ultimately shown to be “misinformation.” Regarding the removal of criticism of government lockdown policies by credentialed experts, it turns out the government was wrong and the critics had a point.

While the courts sort out the constitutional issues, the best remedy for potential government overreach is public knowledge and public accountability. To the extent that government efforts were (in the words of a White House official) “responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections,” the public is likely to be supportive. But to the extent that these actions were driven by partisan considerations, or attempts to suppress legitimate scientific disputes over the wisdom of government policy, the public is likely to take a dim view.

Regardless of how the judge’s order fares on appeal, a practical solution exists that might defuse the matter: Social media platforms should make government takedown requests public. That was the recommendation this spring by the Oversight Board of Meta, Facebook’s parent company. The board (on which I serve), is a global body, independent of the company, with authority to review its content moderation policies. Meta, the board proposed, “should be transparent and report regularly on state actor requests to review content” under various policies, including the coronavirus misinformation policy, foreign government attempts to suppress discussion of the treatment of political prisoners and requests from police departments.

The board noted that government requests to remove material are “particularly problematic where governments make requests to crack down on peaceful protesters or human rights defenders, to control conversations about the origins of the pandemic, and to silence those criticizing or questioning government responses to the public health crisis.”

If Facebook and other social media platforms followed this recommendation, it would ameliorate the problem of government-induced censorship without the need for court intervention.

However difficult it might be to distinguish between government suasion and government coercion, there is no good reason to shroud these efforts in secrecy. If the public were informed when government officials ask social media companies to suppress constitutionally protected speech, they might exercise more restraint — and keep further away from this dangerous line.

This article was originally published in the Washington Post in July 2023.

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