SOCIAL MEDIA PLATFORMSPreliminary Injunction Limiting Government Communications with Platforms Tackles Illegal “Jawboning,” but Fails to Provide Guidance on What’s Unconstitutional

By David Greene

A July 4 preliminary injunction issued by a federal judge in Louisiana limiting government contacts with social media platforms deals with government “jawboning”—urging private persons and entities to censor another’s speech—is a serious issue deserving serious attention and judicial scrutiny.

The First Amendment forbids the government from coercing a private entity to censor, whether the coercion is direct or subtle. This has been an important principle in countering efforts to threaten and  pressure intermediaries like bookstores and credit card processors to limit others’ speech.

But not every communication to an intermediary about users’ speech is unconstitutional. And the distinction between proper and improper speech is often obscure.

So, while the court order is notable as the first to hold the government accountable for unconstitutional jawboning of social media platforms, and appropriately recognizes the First Amendment right of persons to receive information online free of unlawful government interference, it is not the serious examination of jawboning issues that is sorely needed. The court did not distinguish between unconstitutional and constitutional interactions or provide guideposts for distinguishing between them in the future.

The injunction comes in a lawsuit brought by Louisiana, Missouri, and several individuals alleging federal government agencies and officials illegally pushed the platforms to censor content about COVID safety measures and vaccines, elections, and Hunter Biden’s laptop, among other issues. The court sided with the plaintiffs, issuing a broad injunction that does not clearly track First Amendment standards.

Oddly, the injunction includes exceptions that permit some of the most concerning government interactions and indicates that the court may have been more concerned with the subject matter of the government’s complaints—for instance, posts encouraging vaccine hesitancy—than with drawing a workable line on the government’s conduct.

Government Involvement in Content Moderation Raises Human Rights Issues
Because government involvement in private platforms’ content moderation processes raises serious human rights concerns, we have urged companies to proceed with caution in their editorial decision-making. As we have written:

When sites cooperate with government agencies, it leaves the platform inherently biased in favor of the government’s favored positions. It gives government entities outsized influence to manipulate content moderation systems for their own political goals—to control public dialogue, suppress dissent, silence political opponents, or blunt social movements. And once such systems are established, it is easy for government—and particularly law enforcement—to use the systems to coerce and pressure platforms to moderate speech they may not otherwise have chosen to moderate.