SAN FRANCISCO—Government input into social media platforms’ decisions about user content raises serious First Amendment concerns and the government must be held accountable for violations, but not all such communications are improper, Electronic Frontier Foundation (EFF) argued in an appellate brief filed today. 

“Government co-option of the content moderation systems of social media companies is a serious threat to freedom of speech,” the brief notes, although “there are clearly times when it is permissible, appropriate, and even good public policy for government agencies and officials to non-coercively communicate with social media companies about the user speech they publish on their sites.” 

EFF filed the amicus brief to the U.S. Court of Appeals for the Fifth Circuit in Missouri v. Biden, a lawsuit brought by Louisiana, Missouri, and several individuals alleging that federal government agencies and officials illegally pushed social media platforms to censor content about COVID safety measures and vaccines, elections, and Hunter Biden’s laptop, among other issues.   

Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana sided with the plaintiffs, issuing a broad preliminary injunction July 4. The appellate court has stayed the injunction temporarily.  

EFF’s filed its brief on behalf of neither party, but rather to provide the appellate court with useful information about the competing interests involved and the context of social media platform content moderation in which they must be applied. 

Even the biggest, best-resourced social media companies struggle with content moderation, often frustrating users. In search of fairness and consistency in their decisions, social media companies need to draw on outside resources and expertise. This “networked governance” can include trusted flagger programs, trust and safety councils, or external stakeholder engagement teams, as well as as-needed consultations with individual and organizational experts including government agencies. 

Such government input does raise unique and worrisome First Amendment issues, but it can’t be forbidden entirely, the brief argues. 

“The distinction between proper and improper speech is often obscure, leaving ample gray area for courts reviewing such cases to grapple in. But grapple in it they must,” the brief says. “The district court did not adequately distinguish between improper and proper communications in either its analysis or preliminary injunction. The preliminary injunction is internally inconsistent with exceptions that seem to swallow many of its prohibitions. It does not provide adequate guidance to either the government or to anyone else seeking to hold the government to its proscriptions. This Court must independently review the record and make the searching distinctions that the district court did not.” 

For EFF’s brief:  https://www.eff.org/document/missouri-v-biden-amicus-brief

For more on Missouri v. Biden: https://www.courtlistener.com/docket/67563473/state-of-missouri-v-biden/