The ruling has been put on hold pending appeal, and a hearing is set for Thursday. At stake is the ability of voters, advocacy groups, researchers, election administrators, and other government officials, to respond to online purveyors of election denialism and other harmful misinformation.
In May 2022, the attorneys general of Missouri and Louisiana joined with private plaintiffs to file the lawsuit against the Biden administration, alleging that federal officials violated the First Amendment by “significantly encouraging” or “coercing” social media companies to remove or demote content on their platforms. The plaintiffs argued that the officials targeted conservative-leaning speech spanning a range of topics, including the origin of the Covid-19 pandemic, the efficacy of masks and vaccines, the security of voting by mail, and the integrity of the 2020 presidential election. According to the plaintiffs, government officials restricted the free flow of information online by getting social media companies to remove or demote content in these areas, thereby violating the First Amendment.
The government has a responsibility to facilitate democratic participation and, importantly, the government merely sharing information about the accuracy and impacts of the content hosted by social media platforms does not automatically amount to a constitutional violation.
In an extraordinary decision, the court ruled that the plaintiffs will likely be able to prove that the government “used its power to silence the opposition,” likening the government’s alleged actions to George Orwell’s dystopian “Ministry of Truth.” The order prohibited the government from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech,” when communicating with social media companies.
In its ruling, the court broadly defined protected free speech to encompass “all political views and content,” which would apply to spreading misinformation. The injunction included carve-outs that permitted the government to inform social media companies about certain limited topics, including “criminal efforts to suppress voting,” “national security threats,” and foreign election interference. However, the exemptions are vague and undefined, leaving the scope of the order’s prohibitions unclear.
The Brennan Center, the Lawyers’ Committee for Civil Rights Under Law, and Common Cause have filed a friend-of-the-court brief opposing the district court’s deeply flawed decision. Because the order is filled with vague proscriptions and is unclear about whom it binds and precisely what speech it carves out from its ban, it endangers civil society groups’ efforts to fight the disinformation used to deceive or intimidate voters, harass and intimidate election workers and their families, and erode trust in electoral outcomes.
This work is central to the Brennan Center’s mission, which requires robust engagement with election administrators to protect equal access to the ballot. There are numerous examples of how false or misleading information was surgically focused on certain demographics during the 2020 election in an attempt to disenfranchise voters and influence elections, and of how the malicious use of personal information (aka doxing) triggered a wave of harassment and threats against election officials and workers. In an investigation, Reuters identified more than 100 threats of death or violence made to U.S. election workers during the 2020 presidential election. Across several states, local administrators received harassing and frightening texts and phone calls, and one was even confronted outside her home, simply for doing their jobs.
We routinely notify both government officials and social media companies about this kind of misinformation to ensure that voters receive accurate information and so election workers can perform their duties free from intimidation. While the court’s order purported to carve out exceptions for potential criminal conduct, those exceptions were too narrow to protect our work because the order explicitly restricted the government’s ability to alert social media companies about doxing (which is not always a crime), as well as speech that risks voter confusion but may lack criminal intent. When responding to misinformation about elections, the Brennan Center and our allies are typically not positioned to determine the intent of the speaker. Moreover, although it whittles away at the fabric of democracy, the dissemination of false information is often not illegal.
The government has a responsibility to facilitate democratic participation and, importantly, the government merely sharing information about the accuracy and impacts of the content hosted by social media platforms does not automatically amount to a constitutional violation.
Further, social media companies’ various content policies play a vital role in fostering election protection efforts. During election periods, most platforms implement policies that promote accurate information from credible sources, require additional reviews for election-related content, and flag and remove disinformation when possible. The government should not be barred from helping the companies in those efforts. However, coercive behavior that seeks to eliminate viewpoints from the public domain with which the government disagrees violates the First Amendment, and clear judicial guidance and line drawing that mark the bounds of appropriate government conduct are critically needed.
Yet, the ruling issued last month does not offer clarity. Instead, and quite paradoxically, just as the court condemned what, in its view, appeared to be the government’s effort to censor “right-leaning” speech, the ruling functions as an unconstitutional prior restraint—its own form of censorship—that chills the ability of civil society groups to speak freely to government officials for legitimate and lawful purposes that promote a healthy democracy. Because the injunction’s ban on information sharing turns on the purpose of the government’s communications with civil society groups, it operates as a content-based restriction on speech, which violates the First Amendment.
Courts must uphold and defend constitutional guarantees, and First Amendment rights deserve rigorous protection from government coercion that amounts to censorship. Yet the efforts taken by groups like the Brennan Center and social media companies to combat election misinformation and promote truth about our elections are not acts of censorship. Rather, they are crucial to the rights of all to participate in our democracy—rights that are hard-earned and easily lost. The government must play a role, and courts should provide clear guidelines about what speech is constitutionally protected. The district court’s ruling misses the mark and instead muddies the landscape, and the appeals court should not let it stand.
