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Biden administration defends communication with social media companies

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washington d.c.
CNN

The Biden administration on Thursday defended its communications with social media giants in court, arguing that those channels must remain open so the federal government can help protect the public from election security threats, misinformation about Covid- 19 and other hazards.

The closely watched court battle reflects how social media has become an informational battleground for major social issues. He revealed the messy challenges for social media companies as they try to manage the massive amounts of information on their platforms.

And it highlighted warnings from independent researchers, watchdog groups and government officials that malicious actors will continue to try to disrupt the country’s democracy by flooding the internet with bogus and divisive material ahead of the 2024 election. .

In oral arguments before a federal appeals court based in New Orleans, the US government challenged a July injunction that prevented several federal agencies from discussing certain social media posts and sharing other information with platforms. online, amid claims by state governments that such communications amounted to a form of unconstitutional censorship.

Last month, the appeals court temporarily blocked the injunction from taking effect. But the outcome of Thursday’s arguments will determine the ultimate fate of the order, which placed new limits on the ability of the Departments of Homeland Security, Health and Human Services and other federal agencies to coordinate with the technology companies and civil society groups.

If upheld by the U.S. Court of Appeals for the Fifth Circuit, the injunction would remove a wide range of public-private partnerships and undermine the U.S. government’s mission to protect the public, the Biden administration argued. .

“For example, if there was a natural disaster and there were false statements circulating on social media that harmed the public interest, the government would be powerless under the injunction to discourage media companies. social media to further disseminate these incorrect statements,” said Daniel Tenny, a Justice Department attorney.

Now, a panel of three Fifth Circuit judges is tasked with deciding how executive agencies can respond to these threats.

At issue is whether the U.S. government has exerted unconstitutional pressure on social media platforms to censor user speech, particularly when the government has flagged posts on the platforms that it believes violated its own business terms of use.

During more than an hour of closing arguments on Thursday, the three appeal judges gave little guidance on how they would rule the case, with one judge asking only a few questions during the hearing. The other two spent much of the time lobbying Biden administration lawyers and plaintiffs in the case over questions about the scope of the injunction and whether states even had the legal right — or the capacity – to take legal action.

Before them is not only the lower court’s request to overturn the injunction, but also the administration’s request to issue a longer lasting pause on that injunction while the judges weigh the challenge.

In briefs submitted to the court ahead of Thursday’s hearing, the Biden administration argued that a lower court judge was wrong to identify government communications with social media companies as potentially, according to his own words, “the most massive attack on free speech in the United States”. ‘ (sic) history.”

“There is a categorical and well-established distinction between persuasion and coercion,” the administration’s attorneys wrote, adding that the trial court “equated legitimate efforts at persuasion with unlawful efforts at coercion.”

The administration’s opponents in the case, which include the states of Missouri and Louisiana, have argued that the federal government’s communications with social media companies violate the First Amendment because even “the encouragement without duress” can turn private conduct (by media companies) into government action” that infringes users’ rights of expression.

“Each of these federal agencies has interfered in the content moderation decisions of major social media platforms,” ​​D. John Sauer, an attorney representing the state of Louisiana, told judges Thursday. Hypothetically speaking, he added: “The Surgeon General can say, ‘All this talk is terrible, it’s awful.’ …. But what he can’t do is pick up the phone and say, “Pick it up.”

In addition to the states, five people are also plaintiffs in the lawsuit. They include three doctors who have criticized pandemic-era state and federal restrictions, a Louisiana woman who claims she was censored by social media companies for her online criticism of Covid health measures and a man who runs a far-right website known for pushing conspiracy theories.

Much of Thursday’s oral arguments hinged on the definition of coercive communication and how courts have analyzed government pressure against private parties in past cases.

But the states also asserted that there could be a path to finding a constitutional violation if the court found that the social media companies, heeding the administration’s calls to action, had effectively been turned into US government officials.

Over the past month, after District Judge Terry Doughty issued his injunction, current and former U.S. officials, as well as outside researchers and scholars, have expressed concern that the order could have a chilling effect on efforts. aimed at protecting the American elections.

“There is no serious dispute that foreign adversaries have attempted and continue to attempt to interfere in our elections and are using social media to do so,” FBI Director Christopher Wray said. , before the House Judiciary Committee in July. “President Trump himself in 2018 declared a national emergency to that effect, and the Senate Intelligence Committee — in a bipartisan, overwhelmingly bipartisan way — not only found the same, but called for more information sharing between us and social media.

Republican Representative from Ohio, Jim Jordan, chairman of the panel, remains unconvinced. Earlier this week, he and other Republican lawmakers filed their own brief with the appeals court, accusing the Biden administration of a campaign to stifle speech.

“Issue after issue, the Biden administration has twisted the free market of ideas promised by the First Amendment, bringing the brunt of federal authority to bear on any speech it doesn’t like, including memes and jokes.” , wrote Jordan and the other lawmakers. “Of course, Big Tech companies have often needed little coercion to respond to administration bidding on certain issues. Generally eager to please their ideological allies and overseers in the federal government, these corporations and other private entities have repeatedly censored specific speech on important public issues.

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