Joe Biden's Social Media Ban Explained as Judge Restricts White House

On Tuesday, a Trump-appointed judge in Louisiana prohibited a three-page list of federal agencies and U.S. President Joe Biden's administration from working with social media companies to limit or censor "protected free speech" on their platforms.

In a case brought by the attorneys general of Missouri and Louisiana in 2022 against Biden and other members of his administration, Judge Terry A. Doughty ruled that officials had overstepped their constitutional remit by asking the online firms to suppress coronavirus vaccine "disinformation."

While Biden administration officials had sought for social-media companies to address posts that could have resulted in vaccine hesitancy or negatively impact on the holding of elections, Doughty wrote in a supplementary memorandum that the evidence submitted to the court "depicts an almost dystopian scenario."

What Does the Ruling Say?

The ruling bars a number of federal agencies and officials from "urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech" on social media, either by meeting or communicating with company representatives or flagging specific posts.

It also prohibits them from "threatening, pressuring, or coercing social-media companies in any manner" to suppress supposed disinformation protected as free speech.

Agencies named in the ruling included the Department of Health and Human Services, the FBI and the Centers for Disease Control and Prevention.

Officials barred from discussing disinformation with social media firms include Surgeon General Vivek H. Murthy, White House press secretary Karine Jean-Pierre and Secretary of Homeland Security Alejandro Mayorkas.

However, the injunction specifically stipulates that government officials are still able to inform social media companies of criminal activity, threats to national security and election interference.

As a preliminary injunction, it will stand until the court case is resolved or appealed to a higher court.

Why Does the Ruling Matter?

The lawsuit sits at the heart of a legal tension in America over free speech: between wanting to protect the public from speech that could cause them harm or subvert democracy, and protecting individuals' First Amendment right to speak freely—even if what they are saying is not necessarily true.

Espousing falsehoods is not entirely protected under the First Amendment. The U.S. Supreme Court ruled in 1974 that while there was "no constitutional value" in false statements, in some cases punishing falsehoods could put at risk "speech that matters."

The ruling means that sometimes false statements could be protected under the Constitution, if for instance, they are part of a wider debate about an issue of national importance. But others, such as defaming someone's character, might not.

In his memorandum, Doughty recognized that the coronavirus pandemic was a period of time "perhaps best characterized by widespread doubt and uncertainty."

The Biden administration had sought to limit potential harms to the public of that doubt and uncertainty by asking social media companies to suppress claims that ran counter to prevailing scientific understanding.

If people saw and believed allegations that the COVID-19 vaccine caused premature deaths, for example, they might be deterred from receiving it, it was claimed. While some deaths have occurred following vaccination in very few cases, after the vaccine rollout the number of hospitalizations due to the virus among unvaccinated individuals far outweighed those who had been vaccinated.

However, some have argued that the scientific understanding of a previously unknown virus and a rapidly-developed vaccine was not concrete and evolved subject to new information, and so policy based on that understanding should be subject to public debate.

In this case, what counts as true and what is disinformation may not be immediately clear.

Doughty said the First Amendment sought to preserve an "uninhibited marketplace of ideas in which truth will ultimately prevail."

However, social media companies are private entities and have long had their own moderation policies on what is allowed on their platforms—rules that are often stricter than what is allowed by the First Amendment. Given their rise in prevalence in the public discussion, greater attention is now being paid on their role in public discourse.

Lawyers for the Biden administration argued that there was no clear causal link between officials addressing "the harms of disinformation" with social media companies and those companies acting to suppress what they see as disinformation.

They noted that social media companies "have been taking action against what they have deemed to be misinformation for years—since before this administration began." They cited other cases in which other courts had agreed with them.

However, Doughty said that he had been presented with "substantial evidence" in support of claims of "a far-reaching and widespread censorship campaign," adding that during the pandemic the U.S. Government "seems to have assumed a role similar to an Orwellian 'Ministry of Truth.'"

How Did the Ruling Come About?

The lawsuit was brought by the attorneys general of Missouri and Louisiana in 2022, who argued in favor of one side of that legal tension: that free speech should be protected, even if it leads others to act in ways that may not be in the best interest of the nation or themselves.

Eric Schmitt, a GOP senator, who was the Missouri attorney general when the lawsuit was filed, wrote on Twitter that the ruling was "a huge win for the First Amendment and a blow to censorship."

Jeff Landry, Louisiana's attorney general, said in a statement that the injunction was "a big step in the continued fight to prohibit our government from unconstitutional censorship."

He claimed: "The evidence in our case is shocking and offensive with senior federal officials deciding that they could dictate what Americans can and cannot say on Facebook, Twitter, YouTube, and other platforms about COVID-19, elections, criticism of the government, and more."

A White House official told The Associated Press that the Justice Department was reviewing the injunction and would "evaluate its options."

They said the administration had "promoted responsible actions to protect public health, safety and security," and reiterated the view that social media platforms in the modern age have "a critical responsibility to take account of the effects their platforms are having on the American people."

The Justice Department declined to comment further when contacted by Newsweek.

Update 07/05/23, 9:24 a.m. ET: This article was updated with a response from the Justice Department.