"I never thought about threatening companies as a free-speech issue that courts would get involved with."

By Ann Althouse on July 16, 2023

“Let me give you an example. If you had told me four years ago that the White House press secretary had got up and said, ‘I have a message from President Trump. If CNN airs one more criticism of me, I am going to try and block its next merger,’ I would’ve imagined that there would be a lot of outrage about that. What I could not have imagined was a judge releasing an injunction saying that people who worked for President Trump were not allowed to pass on the President’s message from the White House podium. It would be an issue for voters to decide. Or, I suppose, CNN, during the merger decision, could raise the issue and say, ‘See, we didn’t get fair treatment because of what President Trump said,’ and courts could take that into account. But the idea of blocking the White House press secretary from saying anything seems inconceivable to me.”

The New Yorker’s Isaac Chotiner says, interviewing lawprof Genevieve Lakier, in “The Evolving Free-Speech Battle Between Social Media and the Government/A recent court ruling dramatically curtailed the federal bureaucracy’s ability to communicate with Internet platforms. What’s at stake when free speech harms the public?”

I like that Chotiner makes the hypothetical about Trump. The facts in the actual litigation are about the Biden administration, and one can expect New Yorker readers to lean toward approving of whatever Biden’s people saw fit to do. So it’s good to flip the facts.

Lakier says:

I find this question really tricky, because I think that the easiest cases from a First Amendment perspective, and the easiest reason for courts to get involved, is when the communication is secret, because there isn’t political accountability.
You mentioned the White House press secretary saying something in public. O.K., that’s one thing. But what about if she says it in private? We might think, Well, then the platforms are going to complain. But often regulated parties do not want to say that they have been coerced by the government into doing something against their interests, or that they were threatened. There’s often a conspiracy of silence.

In those cases, it doesn’t seem to me as if there’s democratic accountability.

But, even when it is public, we’ve seen over the past year that government officials are writing letters to the platforms: public letters criticizing them, asking for information, badgering them, pestering them about their content-moderation policies. And we might think, Sure, people know that that’s happening. Maybe the government officials will face political accountability if it’s no good. But we might worry that, even then, if the behavior is sufficiently serious, if it’s repeated, it might give the officials too much power to shape the content-moderation policies of the platforms. From a First Amendment perspective, I don’t know why that’s off the table.

Now, from a practical perspective, you’re absolutely right. Courts have not wanted to get involved. But that’s really worrying. I think this desire to just let the political branches work it out has meant that, certainly with the social-media platforms, it’s been like the Wild West. There are no rules of the road. We have no idea what’s O.K. or not for someone in the White House to e-mail to a platform. One of the benefits of the order and the injunction is that it’s opening up this debate about what’s O.K. and what’s not…. This order and injunction go way too far, but I think the case is at least useful in starting a debate. Because up until now we’ve been stuck in this arena where there are important free-speech values that are at stake and no one is really doing much to protect them.