Genevieve Lakier Discusses Free Speech in New Yorker’s Q&A
The Evolving Free-Speech Battle Between Social Media and the Government
Earlier this month, a federal judge in Louisiana issued a ruling that restricted various government agencies from communicating with social-media companies. The plaintiffs, which include the attorneys general of Missouri and Louisiana, argued that the federal government was coercing social-media companies into limiting speech on topics such as vaccine skepticism. The judge wrote, in a preliminary injunction, “If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history. The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition.” The injunction prevented agencies such as the Department of Health and Human Services and the F.B.I. from communicating with Facebook, Twitter, or other platforms about removing or censoring content. (The Biden Administration appealed the injunction and, on Friday, the Fifth Circuit paused it. A three-judge panel will soon decide whether it will be reinstated as the case proceeds.) Critics have expressed concern that such orders will limit the ability of the government to fight disinformation.
To better understand the issues at stake, I recently spoke by phone with Genevieve Lakier, a professor of law at the University of Chicago Law School who focusses on issues of social media and free speech. (We spoke before Friday’s pause.) During our conversation, which has been edited for length and clarity, we discussed why the ruling was such a radical departure from the way that courts generally handle these issues, how to apply concepts like free speech to government actors, and why some of the communication between the government and social-media companies was problematic.
In a very basic sense, what does this decision actually do?
Well, in practical terms, it prevents a huge swath of the executive branch of the federal government from essentially talking to social-media platforms about what they consider to be bad or harmful speech on the platforms.
There’s an injunction and then there’s an order, and both are important. The order is the justification for the injunction, but the injunction itself is what actually has effects on the world. And the injunction is incredibly broad. It says all of these defendants—and we’re talking about the President, the Surgeon General, the White House press secretary, the State Department, the F.B.I.—may not urge, encourage, pressure, or induce in any manner the companies to do something different than what they might otherwise do about harmful speech. This is incredibly broad language. It suggests, and I think is likely to be interpreted to mean, that, basically, if you’re a member of one of the agencies or if you’re named in this injunction, you just cannot speak to the platforms about harmful speech on the platform until, or unless, the injunction ends.
But one of the puzzling things about the injunction is that there are these very significant carve-outs. For example, my favorite is that the injunction says, basically, “On the other hand, you may communicate with the platforms about threats to public safety or security of the United States.” Now, of course, the defendants in the lawsuit would say, “That’s all we’ve been doing. When we talk to you, when we talk to the platforms about election misinformation or health misinformation, we are alerting them to threats to the safety and security of the United States.”
So, read one way, the injunction chills an enormous amount of speech. Read another way, it doesn’t really change anything at all. But, of course, when you get an injunction like this from a federal court, it’s better to be safe than sorry. I imagine that all of the agencies and government officials listed in the injunction are going to think, We’d better shut up.
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