There's no 'disinformation' exception to the First Amendment

Misinformation and disinformation retain the basic characteristics of speech. Unless they fall into one of very few exceptions, they are protected from censorship under the First Amendment.

Consistent with those very limited exceptions, any effort by the government to prevent the dissemination of ideas or opinions, even if they are based on untruths, is unconstitutional.

A three-judge panel for the Fifth Circuit Court of Appeals recently upheld an injunction that prohibits the government from pressuring social media platforms to de-escalate or remove speech that the government identifies as misinformation or disinformation.

On Thursday, Sept. 14, that injunction was put on pause by the Supreme Court until Sept. 22, to give the Court more time to consider the issue.

The injunction resulted from a lawsuit filed by the attorneys general of Missouri and Louisiana and others accusing the federal government of strong-arming social media companies in order to amplify government-approved points of view and muffle or silence opposing views.

The federal government’s argument was that it did no more than partner with the companies and assist them in rooting out disinformation. Dismissing this argument, the Fifth Circuit held that the government implemented a coordinated campaign of such unrelenting pressure that the content moderation policies implemented by the platforms were no longer independent. Instead, the platforms were functioning as agents of the government, transforming the content moderation decisions into state action.

In other words, the appellate panel found that the social media platforms essentially acted as agents of the federal government when the platforms removed or de-amplified posts based on government-created criteria of truth or falsity. In doing so, the court found that the government unconstitutionally censored the speakers’ and listeners’ First Amendment rights.

The White House, the CDC, the FBI and the surgeon general, the court held, may not threaten the platforms with regulatory action, supervise, or directly involve themselves in content moderation decisions. The court cautioned that all decisions regarding removing, deleting, suppressing or reducing posts to the platforms must be absent from government influence.

Reasonable minds can differ on whether the feds’ interactions with these platforms were coercive and transformed the social media policies into state action. But the legal theory supporting the injunction— that government cannot put its finger on the scale of our First Amendment freedom of speech by imposing content-sensitive tests on acceptable speech — is a central tenet of First Amendment jurisprudence.

The freedom to speak is vast and expansive, and no moral or truth scale is attached to it. We can proclaim truths as easily as we can spread lies; the First Amendment makes little distinction between the two. The government can neither force us to speak its version of the truth nor silence those who take an opposing view, or else it runs afoul of the First Amendment.

The case before the Fifth Circuit Court of Appeals focused on government efforts to control published information about COVID-19 and election interference. Regarding COVID-19, the government’s stated purpose was to encourage social media companies to remove any speech that discouraged people from following government public health guidelines, including masking and obtaining a COVID-19 vaccination. Some people who did not follow government recommendations or failed to get the vaccination may have died because of their behavior.

An argument can be made that this was an issue of public health or safety and so efforts by the government to remove disinformation did not infringe upon the First amendment rights of the speakers. An argument can also be made that anti-mask or anti-vaccine messaging simply represents an opposing view. If that is the case, then even if it is inaccurate, it is protected from government censor.

Election interference messaging can also be either sinister or merely misinformed. Messaging created and controlled by foreign or even domestic actors for the purpose of creating discord and fear can create public safety and national security concerns. It is well within the powers of the government to silence speakers in that case.

However, messages that merely question the integrity of the election or allege fraud or other conspiracies may reflect the political views of the speakers. Expression of those views, even if they are based on false data, must be allowed to enter the marketplace of ideas and become subject to scrutiny there. They cannot constitutionally be silenced.

Although the government may not be able to silence disinformation, it remains free to publish its own messages and to debate, even disparage, its critics. It can also engage, in all matters of persuasion, to encourage social media platforms to publish only those messages that support government-approved points of view.

Additionally, there are legislative options. The government can remove the immunity protections provided to social media platforms by section 230 of the Communication Decency Act. With immunity protections removed, social media companies would risk liability for harms directly related to hosted messages. They might then be motivated to create stronger content moderation policies and police them more carefully.

If, despite all best efforts, disinformation continues to infect the marketplace of ideas, then our First Amendment jurisprudence clearly holds that that is the price of our right to speak freely.

Lynn Greenky is a professor emeritus at Syracuse University, where she taught a course about the First Amendment for 10 years. She continues to write and speak about the First Amendment and is the author of “When Freedom Speaks.

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