The House of Representative last week passed a bill to protect online speech from federal officials. House Republicans drafted the proposal largely in response to reporting that revealed federal employees—often in law enforcement or public-health agencies—have asked social media platforms to moderate users’ legally protected speech.
For instance, in one edition of the “Twitter Files,” a series of reports based on internal Twitter records, journalist Matt Taibbi revealed that the FBI’s correspondence with the platform was “constant and pervasive.” Taibbi found that “there were over 150 emails between the FBI and former Twitter Trust and Safety chief Yoel Roth” between January 2020 and November 2022. The FBI, wary of election misinformation, regularly reported even satirical content to Twitter. This sort of coordination between officials and platforms was the norm, not an aberration.
The agency’s conduct would certainly seem to violate the spirit, if not the letter, of the First Amendment. The bill passed by House Republicans recognizes this, but has its own major problems.
The bill’s primary fault lies in its definitions. It defines “censorship” as “influencing or coercing…for…the removal or suppression of lawful [online] speech”; “the addition of any disclaimer, information, or other alert to lawful [online] speech”; or “the removal or restriction of access of any person or entity on an interactive computer service generally available to the public.”
This expansive language would seemingly extend past the attempts to influence social-media content moderation outlined in the Twitter Files. “The bill applies to requests that authors remove their own interactive computer service posts, or add corrections to those posts, and not just to requests that the computer services do that to their users’ posts,” Eugene Volokh, a law professor at UCLA, tells Reason. What’s more, “The bill applies to requests that, say, newspaper writers add corrections to their posts online…and not just to requests that the computer services block or delete users’ posts,” he adds.
Federal employees would be barred from exerting their “official authority” to “censor” online speech, or even advocating the suppression or alteration of legal online speech while wearing a “uniform or official insignia” or in a federal work building or vehicle. The bill exempts law enforcement attempting to curb unlawful speech, although in such instances a detailed report of each “censorship action” would be required.
Moreover, the bill’s strictures on the speech of federal employees, even in their personal capacities, could raise civil liberties concerns, says Ari Cohn, free speech counsel at TechFreedom. “Many users say where they work even on their personal, non-official social media account bios,” Cohn notes. “Are those people prohibited, because their personal profile indicates their employment, from reporting content using a platform’s tools, or even from posting about how they disagree with a platform’s decision to leave certain content up?”
The bill will almost surely stall in the Democrat-controlled Senate, but should the GOP retake the Senate and the White House in 2024, a subsequent, tailored version could find traction. Corralling the unruly stampede of federal bureaucrats back into the bounds of constitutional intent is a worthy endeavor, particularly since the courts may decide it’s not their place.
Some politicians and pundits have suggested that jawboning bureaucrats violated the First Amendment, but this notion is unlikely to withstand judicial scrutiny. In O’Handley v. Weber, the U.S. Court of Appeals for the 9th Circuit held last week that a government providing input in a platform’s content moderation does not necessarily transform the moderation itself into state action, a reiteration of existing precedent. “The First Amendment does not interfere with this communication so long as the intermediary is free to disagree with the government and to make its own independent judgment about whether to comply with the government’s request,” Judge Paul Watford wrote. The plaintiff also fell short under Supreme Court precedent set in Bantam Books v. Sullivan (1963): “Bantam Books and its progeny draw a line between coercion and persuasion,” Watford explained. “The former is unconstitutional intimidation while the latter is permissible government speech.”
Placing limits on that speech is up to Congress.
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