Misinformation and disinformation retain the basic characteristics of speech. The First Amendment protects them from censorship unless they fall under one of the very few exceptions.
Consistent with those very limited exceptions, any effort by the government to prevent the dissemination of ideas or opinions, even if they are based on untruths, is unconstitutional.
A three-judge panel for the Fifth Circuit Court of Appeals recently upheld an injunction that prohibits the government from pressuring social media platforms to de-escalate or remove speech that the government identifies as misinformation or disinformation. The Supreme Court put the injunction on hold until September 22 to allow the Court to review the issue. The federal government argued that it was merely a partner and helped the companies to root out disinformation. The Fifth Circuit rejected this argument and held that government had implemented a coordinated, unrelenting campaign that compelled the platforms to abandon their content moderation policies. The platforms were acting as agents of government and transforming content moderation into state actions. The appellate panel determined that social media platforms were acting as agents of federal government by removing or de-amplifying posts based upon government-created criteria for truth or falsehood. The court ruled that the White House, CDC, FBI, and surgeon general cannot threaten platforms with regulatory actions, supervise or directly get involved in content moderation. The court cautioned that all decisions regarding removing, deleting, suppressing or reducing posts to the platforms must be absent from government influence.
Reasonable minds can differ on whether the feds’ interactions with these platforms were coercive and transformed the social media policies into state action. The legal theory that supports the injunction — that the government cannot impose content-sensitive standards on acceptable speech to limit our First Amendment freedom of expression — is central to First Amendment law. The freedom to speak has no limits and is not governed by morality or truth. The First Amendment does not distinguish between truth and lies. The government can neither force us to speak its version of the truth nor silence those who take an opposing view, or else it runs afoul of the First Amendment.
The case before the Fifth Circuit Court of Appeals focused on government efforts to control published information about COVID-19 and election interference. In the case of COVID-19 and election interference, the government stated that it wanted social media companies not to post anything that would discourage people from following public health guidelines. This included masking or obtaining a COVID-19 vaccine. Some people may have died as a result of their actions if they did not follow the government’s recommendations or failed to receive the vaccination.
It can be argued that the issue was one of public safety or health, and therefore the government’s efforts to remove the disinformation didn’t violate the First Amendment rights of the speakers. One can argue that anti-vaccine or anti-mask messaging is simply an alternative view. If that is the case, then even if it is inaccurate, it is protected from government censor.
Election interference messaging can also be either sinister or merely misinformed. The creation and control of messaging by domestic or foreign actors to create discord and terror can cause public safety and national concerns. In such a case, the government has the right to silence the speaker. However, messages which merely question or deny the integrity of an election or make allegations of fraud or other conspiracies can reflect the political opinions of the speaker. Even if the views are false, they must be allowed into the marketplace of ideas to be scrutinized. They cannot constitutionally be silenced.
Although the government may not be able to silence disinformation, it remains free to publish its own messages and to debate, even disparage, its critics. In all matters of persuasion it can also encourage social media platforms only to publish messages that support the government’s approved points of view.
Additionally, there are legislative options. The government may remove the immunity protections granted to social media platforms under section 230 Communication Decency Act. Social media companies could be held liable for any harm directly related to messages they host if immunity protections are removed. The companies might be more motivated to develop stronger policies for content moderation and enforce them more closely.
If disinformation persists in the marketplace of ideas despite our best efforts, our First Amendment law clearly states that this is the price we pay for our right to free speech. Lynn Greenky taught a course on the First Amendment at Syracuse University where she was a professor emeritus. She continues to write and speak about the First Amendment and is the author of “
When Freedom Speaks
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