“Disinformation” is not a crime

In the case of Missouri et al. v. Joseph R. Biden et al., the State of Missouri and others have alleged that the U.S. government’s cooperation with social media websites, paired with implied and express threats of regulation if the social media companies refused to comply, to censor Americans expressing otherwise lawful opinions should be prohibited under the First Amendment.

Further to this, in the middle of last month, Missouri and the other plaintiffs filed a motion for a preliminary injunction against Joseph R. Biden, the President of the United States, in his official capacity, and various other individuals in their various official capacities as heads of government agencies, such as Tony Fauci and Xavier Becerra, and anyone acting in concert with them, seeking to prevent them from doing the following:

from taking any steps to demand, urge, encourage, pressure, or otherwise induce any social-media company or platform for online speech, or any employee, officer, or agent of any such company or platform, to censor, suppress, remove, de-platform, suspend, shadow-ban, de-boost, restrict access to content, or take any other adverse action against any speaker, content, or viewpoint expressed on social media[.]

Today, July 4th, 2023, a federal district court largely granted that motion, and prohibited the Biden Administration from taking any action to remove content which constitutes protected free speech. Exceptions were made where the contact with the social media company was made with a view to notifying the firms about various categories of crime, national security threats, and the removal of posts that “are not protected free speech”.

Put another way, it was a monumental victory for freedom of speech, and made it clear that the government can’t achieve by threats and political pressure on third parties what it is prohibited by law from doing on its own.

Pravda The New York Times complained that the ruling “could curtail efforts to combat false and misleading narratives about the coronavirus pandemic and other issues.”

The Washington Post, meanwhile, was similarly disappointed, whining that “[t]he Donald Trump-appointed judge’s move could undo years of efforts to enhance coordination between the government and social media companies.”

But will it actually?

Talking to the government as a web company: a lawyer’s perspective

There’s a reason lawyers say “don’t talk to the police.” I would extend that principle and say “don’t talk to the government.” We don’t say this because you shouldn’t cooperate with the government, or that the government is somehow inherently bad. It’s because talking to the government involves potentially huge amounts of personal liability if you happen to put a foot wrong by making a materially false statement, for example. You can limit this liability substantially by keeping your communications few and always making those communications with the assistance of a legal team.

As such, it is extremely unusual for businesses to have frequent, casual, unsupervised contacts between senior staff and federal agents, and why most folks who are in the “helping-u-deal-with-the-government” business had our collective jaws hit the floor when we learned that Homeland Security was openly deputizing private actors to help them insinuate government propaganda policy in corporate boardrooms.

Putting politics (including free speech issues) to one side for a moment, allowing senior corporate officers to have that level of close, even chummy contact with DHS and the FBI is insane. Normally, when contact is inbound from a federal agency, it is done as a result of and pursuant to some official process, usually authorized by a court or a grand jury, in writing, where the government has a legally binding demand and the company has a legally binding obligation to respond.

With a web company like Twitter or Facebook, those sorts of communications – the legally binding kinds – likely fall into the following categories, at least from American government agencies:

  • The overwhelming majority of the legal process likely consists of grand jury and other administrative subpoenas, where a grand jury has been empaneled and is investigating some crime for which records are sought. Generally when served on an internet communications company these subpoenas can only obtain non-content subscriber logs. For content you’ll need a…
  • Search warrant signed by a judge, issued upon probable cause that the records held by the social media company contain evidence that will assist in the commission of a crime.
  • 2703(d) Orders, which are sort of a halfway point between a subpoena and a search warrant in terms of the kind of information which is available, in that it can get detailed logs about with whom an internet user communicated but not the content of that communication (which requires a warrant).
  • National Security Letters, which can demand non-content data but are authorized by senior officials at the FBI rather than a grand jury.

Mind you, in the event of a genuine emergency, which to me means “an actual, even if unlikely, threat to life or property,” law enforcement may request, and social media companies may volunteer, this information if they wish. Otherwise, the obtaining this information from a web company requires U.S. law enforcement to follow a statutory pathway set out in the USA PATRIOT Act and the Stored Communications Act in order to get it.

Judge Dougherty’s order does not do a thing to prevent these kinds of communications from being made between law enforcement and social media companies. This is good and correct.

What these pathways share in common is that they relate to criminal proceedings or regulatory violations. If you aren’t breaking any laws, there’s no reason for the government to empanel a grand jury or obtain a search warrant. Moreover, these orders do not, repeat not, require social media companies to take any action against the content in question once the orders are given.

American laws on content do not empower the government to deputize social media companies as political speech enforcers

This is not the case in the rest of the world. Take for example the Christchurch Shooting in 2019. In that shooting, a deranged individual named Brenton Tarrant posted a manifesto online before live-streaming what can only be described as an absolutely horrific crime on Facebook Live.

As it happens, the Christchurch Shooting happened in New Zealand, not America, and New Zealand has a censorship law which it more or less immediately invoked against that content, like many other countries around the world also do. The country subsequently embarked on a global crusade, the Christchurch Call, to wipe the video off the web. Social media companies, including Zoom, Dailymotion, Youtube, Google/Alphabet, Facebook, and even Twitter enthusiastically signed on to this initiative.

In the United States, there would be no legal requirement on Facebook to remove his account after receiving a search warrant from the FBI. There is not, as far as I am aware, any rule of law in any jurisdiction of the United States, state or federal, which would empower the government to order that content removed. Indeed, there’s a rule – 47 U.S. Code Section 230(c)(1) – which says that Facebook not only has no obligation to remove that content, but Facebook is presumptively immune from liability even if it made a conscious, affirmative editorial decision to leave it up.

“Disinformation” is not a crime, and getting the government out of the “disinformation” business won’t harm public safety

This is the key distinction between the American and European (the latter of which includes Canadian, NZ, Australian) approaches to speech regulation of the Internet, and why the relationship of a social media company to the U.S. government necessarily has to be different than its relationship with a foreign one.

In Europe/Canada/NZ/Australia, expressing a controversial point of view, without more, can be a speech crime. In America, it is not. We see, however, that there remain many avenues for law enforcement to make requests of social media companies and for social media companies to respond to those inquiries. All that is required first, in the usual way, is the evidence of a commission of a crime and judicial supervision, or some valid investigatory process like the empaneling of a grand jury. (Indeed, notifying social media companies of the presence of illegal activity is broadly carved out from the scope of the injunction, so law enforcement still has the ability to contact socials about bad actors who are suspected of breaking the law.)

What is not permitted by the injunction is coordinating to suppress lawful speech and conduct. The question we should be asking ourselves about Missouri v. Biden is whether we want the government using informal pressure to police speech which the people, with the legal bargain enshrined in the First Amendment, have not authorized the government to police.

The government’s track record is not strong on this point. Official state mouthpieces have, in the last three years, labeled statements criticizing the official position on vaccine efficacy, laptop computers allegedly belonging to a certain presidential candidate’s son, and the origins of a certain coronavirus “disinformation.” As it turns out, all of those government pronouncements on aforementioned matters of considerable public importance were false, and the so-called “disinformation” was true.

If the state thinks a crime has been committed, there are a great many avenues for it to let this be known to social media companies. What the New York Times is complaining about is speech which is sub-criminal and merely unpopular. The Times laments that a federal court had the temerity to tell the Executive Branch to stay out of regulating speech that, in America, an oversensitive person might complain about to a college administrator or an HR department – not the police.

Post-COVID, the “just trust us, these opinions are bad” dog won’t hunt. For now, the government has their Twitter accounts and gray checkmarks. I can only suggest that they use them. The result of Missouri v. Biden will not be a catastrophic reduction in state capacity to enforce the laws or police bad behavior on the web. Really, all it will mean, going forward, assuming the result from this preliminary injunction holds, is that the government will simply have to win the argument by embracing transparency and presenting evidence in public – just like everyone else, and just as they should have been doing from the start.