The core question in Missouri v. Biden is whether the administration crossed a line as it communicated with platforms regarding misinformation about the coronavirus, election integrity and more. The 5th Circuit’s answer is that the government may attempt to persuade platforms to police speech in a certain way — but it may not attempt to coerce them.
It makes sense that, as the judges explain, public statements from the podium, such as those made by Anthony Fauci when he was director of the National Institute of Allergy and Infectious Diseases, pass constitutional muster. And it makes sense that the White House’s repeated demands that Facebook scrub out individual posts or accounts could be reasonably interpreted as threats by their targets.
But where the 5th Circuit’s reasoning is questionable — and where it departs from what other courts have ruled — is in the less clear-cut cases. For example, the FBI issued tip-offs to platforms about potential “hack and dump” activities from state-sponsored actors. Only 50 percent of flagging operations led to takedowns, and the court concedes it “cannot say that the FBI’s messages were plainly threatening in tone or manner.” Nonetheless, the judges find the agency’s actions objectionable.
Similarly, the 5th Circuit clears the Centers for Disease Control and Prevention of coercion in its “Be On the Lookout” alerts about trends in misinformation — but says the agency likely violated the Constitution by encouraging platforms to combat such misinformation. Yet the CDC doesn’t have any real ability to help or harm platforms, and its conversations with social media sites during the pandemic largely involved it explicating the latest science, often at the companies’ request. Is an agency seeking any kind of collaboration with a platform impermissibly entangling itself in the platform’s policymaking?
The government shouldn’t be able to browbeat Facebook, Twitter (now known as X) and their cohorts into muting expression that the First Amendment protects. But the government, itself entitled to some speech rights, should be able to advocate its policies — and it should also be able to share information about national security or public health with the online services at the heart of modern-day life. The 5th Circuit recognizes these dueling imperatives in theory, but the course it charts for reconciling them in practice is too murky to make out. All parties need a clearer picture. The Supreme Court can provide it.
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