Bureaucrats shouldn’t determine which views are acceptable and which are not

OPINION:

On Monday, the Supreme Court will hear oral arguments in Murthy v. Missouri, a case about the power of the federal government to restrict Americans’ free speech online.

Lower courts have already found that “social media platforms have engaged in censorship of certain viewpoints on key issues and that the government has engaged in a years-long pressure campaign designed to ensure that the censorship aligned with the government’s preferred viewpoints.”

This campaign involved officials from the White House, Office of the Surgeon General, Centers for Disease Control and Prevention, FBI, and Department of Homeland Security, some of whom intimidated and threatened private companies to delete or suppress the reach of certain users’ social media posts regarding COVID-19 and election matters.

Particularly disturbing was the demoting and removal of posts by the “disinfo dozen,” a group of influencers identified by the White House for their “problematic” speech. Some of these users were “deplatformed” entirely. In what looks like a 21st-century enemies list, the users were censored even though the companies had concluded the posts in question were not in violation of company policies.

The Biden administration argues that its pressure on private companies was justified by the need to limit the spread of disinformation or misinformation about public health and to fight malign foreign influence in elections. The risks to the free speech rights of Americans, however, should be obvious. A chasm lies between the government’s affirmative speech to persuade the public and its efforts to suppress dissenting viewpoints. That the government deems certain views false or harmful is irrelevant; in a free society, the people — not the government — make those decisions.

There is little doubt that governmental pressure can affect social media companies’ decisions to amplify or muffle information. Meta CEO Mark Zuckerberg has admitted, for example, that Facebook limited access to news about the contents of Hunter Biden’s laptop after the FBI warned the company about a potential Russian “hack and leak” operation leading up to the 2020 presidential campaign. Although it is now generally accepted that the laptop was not the product of a Russian disinformation campaign, the story was nevertheless censored before the election.

The government’s ongoing efforts came to the fore when it was revealed in 2022 that the Department of Homeland Security was setting up a Disinformation Governance Board.

The organization was charged with guiding a counter-disinformation campaign, including coordinating with the private sector, directing funds to outside researchers, and recommending the development of new technologies to assist in the campaign. Although it was also supposed to ensure the protection of civil liberties, the Orwellian-sounding board caused a bipartisan uproar in Congress, the public, and civil society groups. Homeland Security Secretary Alejandro Mayorkas terminated the board and rescinded its charter. But while the work of the board stopped, the government’s activities to counter disinformation, which predate the board, appear to have marched on — with no evident transparency or “governance.”

The Biden administration’s ongoing campaign against what it deems disinformation has the potential to be especially dangerous when it intersects with national security powers. There have been actual disinformation operations by hostile foreign powers, of course. But the present disinformation panic extends to domestic concerns too. The Biden administration’s 2022 National Security Strategy makes this explicit, connecting “domestic violent extremist threats” to “the crisis of disinformation and misinformation, often channeled through social and other media platforms.”

Vigorous oversight of the administration’s plans is therefore vital to ensure that American citizens can speak freely. Bureaucrats should not be in the position to determine which Americans’ views are acceptable and which are not. While there are legitimate reasons for examining foreign disinformation and appropriate means to respond to it, the government walks a tightrope. The House Judiciary Committee has exposed some of the government’s overreach in a series of hearings and reports, but more work remains.

The Privacy and Civil Liberties Oversight Board, of which I am a member, is investigating the government’s efforts to combat domestic terrorism. One focus of the project is the relation between those efforts and the campaign against disinformation that the National Security Strategy discusses.

We are seeking answers to questions such as: How do federal agencies determine whether something is disinformation or otherwise false or misleading? Who makes those determinations? How does the government distinguish the speech of foreign actors from that of U.S. citizens? What remedial actions should be taken? What specific safeguards are in place to protect Americans’ privacy and civil liberties from the effects of those actions? And what role will artificial intelligence play in determining truth from falsity?

The outcome of Murthy v. Missouri will help shape the contours of lawful government action. But the policy questions will remain. Americans deserve confidence that any efforts by the government to limit disinformation are necessary to protect national security and are conducted in a way that most preserves civil liberties.

• Beth A. Williams is a member of the Privacy and Civil Liberties Oversight Board. She served as assistant attorney general for the Office of Legal Policy at the Department of Justice from 2017 to 2020.