The following editorial originally appeared in the St. Louis Post-Dispatch:
A federal judge’s order last week effectively barring the federal government from coordinating with social media companies to counter big lies online pits two important imperatives against one another: confronting widespread disinformation and protecting freedom of speech.
The order comes down almost entirely on the side of the latter, to the point that, if it stands, it could create a scenario in which the government might be unable to even call out dangerous disinformation for fear of being accused of censoring free speech.
That’s the wrong balance — but a balance is needed. This is a much more complicated issue than either side of the debate seems ready to admit.
The order, issued Tuesday in a federal lawsuit brought by Missouri and Louisiana, restricts the Biden administration from communicating with social media platforms about a vast range of topics, and from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The core allegation of the suit — that the government is effectively using its relationship with social media companies to engage in speech suppression by proxy that it couldn’t legally engage in directly — is difficult to completely dismiss.
The plaintiffs appear to have an ideological ally in U.S. District Judge Terry A. Doughty of Louisiana, who handed down the ruling. A Donald Trump appointee, Doughty has shown in the past a willingness to entertain some of the most mischievous nonsense of the culture wars, including the thoroughly debunked claim that COVID vaccines don’t work.
Some of the more histrionic portions of Doughty’s opinion in the current case read like something overheard at a Trump rally. “If the allegations made by Plaintiffs are true,” he writes, “the present case arguably involves the most massive attack against free speech in United States’ history.”
It’s clearly not that. For one thing, the social media platforms themselves aren’t beholden to the White House for their ability to operate. But from a government-intrusion standpoint, it’s a problem.
None of this is to say the current order will, or should, stand on appeal as written. Legal scholars have been savage in their assessment of it, and even a layman’s reading of the ruling can recognize it is largely a culture-war manifesto dressed up as a legal opinion.
But the underlying question — whether and how the federal government should engage with social media companies to confront disinformation — is one that needs to be addressed regardless of the ultimate outcome of this case. Traditional liberals, true libertarians and, yes, this newspaper have long warned of the danger of government regulation of speech. That danger doesn’t evaporate just because the regulation is indirect and the speech in question is toxic.
