This op-ed originally appeared on the Daily Caller.
In August, the New Civil Liberties Alliance (NCLA), representing epidemiologists joined a lawsuit filed by the states of Missouri and Louisiana in a U.S. district court against the Biden administration, alleging the government suppressed speech by coercing social media companies to censor content over the past several years. Plaintiffs in the case include the states of Missouri, Louisiana and two epidemiologists, Dr. Jay Bhattacharya, and Dr. Martin Kuldorff.
And thanks to the plaintiffs’ victory in last month’s discovery dispute, we’ll soon get to hear their lawyers question important administration officials, including Dr. Fauci and White House Press Secretary Jean-Pierre.
NCLA’s lawsuit will have significant ramifications on content moderation in the U.S. The case will answer an important policy question: To what extent are the content moderation decisions social media companies have made over the last several years influenced by the threat of government action?
The plaintiffs believe the government’s influence over social media companies is enough that it constitutes a violation of the First Amendment. While the merit of these accusations is unclear at this point, what’s certain is that the government’s ties to corporations like Facebook and Twitter are too close for comfort.
Let’s hope this lawsuit exposes the extent of governmental overreach.
The line between Big Tech’s public and private functions are already blurred. Documents released from the NCLA lawsuit show a disturbing pattern of collaboration between tech giants and government agents. These documents, combined with the broad regulatory power of the federal government, show a trend of social media companies operating with government agencies as if they were collaborating with co-workers.
For example, as early as February, 2020 Facebook was in constant communication with government agencies to assist in managing COVID messaging, including to “control” any “misinformation” surrounding the virus. This strategy also involved Facebook consistently sharing content insights with the Centers for Disease Control and Prevention (CDC). These emails included offers to explore “specific keywords/topics” at the agency’s behest.
Government agents used information obtained from Facebook to request the company target specific information related to possible COVID side effects. According to reporting from the Baltimore Post Examiner, this joint effort between the federal government and tech giants included years-long communications between companies and multiple agencies, totaling roughly one hundred government actors.
Some argue social media companies are truly eager to work with government officials, making their coordination purely voluntary and therefore beyond the law’s reach.
However, the asymmetrical power dynamic between the federal government and private companies has to make you wonder. Are social media companies truly eager to work with government officials, or is the asymmetrical power dynamic the cause of their compliance?
The problems raised by these lawsuits are not new. A recent CATO report discusses how the government uses bullying techniques — or “jawboning” — to establish the “rules” by which social media operates. Jawboning occurs when the government threatens or coerces private companies.
Because the line separating “requests” and “threats” can be difficult to discern, jawboning can be difficult to identify.
Recent trends in government communication with the private sector bolsters the jawboning argument. The government has engaged in increasingly aggressive communication towards social media companies when discussing content moderation practices.
In July, 2021 former White House Press Secretary Jen Psaki discussed the collaborative relationship between the White House and social media companies, saying the parties were in constant communication regarding COVID-19 narratives.
Other administration officials made it clear social media companies could face legal retaliation if they failed to cooperate with government desires. Biden officials “turned up the heat,” targeting specific accounts known as the “disinformation dozen,” and threatened to change or repeal Section 230 if social media companies failed to take action to address speech the government believed fell under the category of “misinformation.”
Discussions surrounding the COVID crisis are not the only conversations the government seeks to monitor. Facebook algorithmically downplayed the infamous Hunter Biden laptop story after the FBI contacted Facebook and warned the company to be alert to “Russian disinformation.”
Following the revelation of this information, the NCLA amended their complaint, alleging the FBI was involved in suppressing speech by routinely coordinating with social media companies to assist companies in “protecting their platforms.” Given the Department of Justice’s ongoing investigation of Facebook — now Meta — in relation to possible antitrust violations, it is difficult to construe the company’s actions as purely voluntary.
Indeed, the amended complaint alleges an FBI agent heavily involved with communications between the government and social media companies “bemoaned the fact that there was not a similar level of coordination about censorship between the federal government and social-media companies during the 2016 election cycle,” and publicly encouraged individuals to report misinformation to the FBI through official government websites.
The details which have come out as a result of this lawsuit reveal strong ties between tech companies and government agencies, particularly law enforcement agencies, substantiating perceptions among conservative Americans that the federal government is deeply corrupt and openly contemptuous of free speech.
Additionally, these tight public-private relationships pervert the free market system, which requires that corporations operate without government coercion.
The conservative position is often overstated. There is no obligation for private companies to treat all speech with equal weight. But, it is reasonable for Americans to expect the behavior of private actors to be free from coercive government influence.
At present, the line separating government and corporate action is hard to see.
Free speech advocates and policymakers interested in preserving the line between the public and private sectors should keep an eye on this lawsuit.