A July 4 preliminary injunction issued by a federal judge in Louisiana limiting government contacts with social media platforms deals with government “jawboning”—urging private persons and entities to censor another’s speech—a serious issue deserving serious attention and judicial scrutiny.
The First Amendment forbids the government from coercing a private entity to censor, whether the coercion is direct or subtle. This has been an important principle in countering efforts to threaten and pressure intermediaries like bookstores and credit card processors to limit others’ speech.
But not every communication to an intermediary about users’ speech is unconstitutional. And the distinction between proper and improper speech is often obscure.
So, while the court order is notable as the first to hold the government accountable for unconstitutional jawboning of social media platforms, and appropriately recognizes the First Amendment right of persons to receive information online free of unlawful government interference, it is not the serious examination of jawboning issues that is sorely needed. The court did not distinguish between unconstitutional and constitutional interactions or provide guideposts for distinguishing between them in the future.
The injunction comes in a lawsuit brought by Louisiana, Missouri, and several individuals alleging federal government agencies and officials illegally pushed the platforms to censor content about COVID safety measures and vaccines, elections, and Hunter Biden’s laptop, among other issues. The court sided with the plaintiffs, issuing a broad injunction that does not clearly track First Amendment standards.
Oddly, the injunction includes exceptions that permit some of the most concerning government interactions and indicates that the court may have been more
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