united-states constitutional-law freedom-of-speech
Aren&#39;t there first amendment issues with the way the Biden Administration is telling Facebook et. al. to delete &quot;covid misinformation&quot;?
<p>We have recently learned that the <a href="https://www.msn.com/en-us/news/politics/biden-administration-s-admission-they-re-flagging-content-to-facebook-sparks-furor/ar-AAMcFjp" rel="noreferrer">Biden administration is flagging Facebook posts</a> for vaccine-related misinformation, with the expectation that FB will delete them.  Doesn't this run afoul of the First Amendment?  I get that FB is a private company and thus 1A doesn't apply to them, but this isn't FB doing it on their own volition.  To me it seems like if the government hired a private security contractor to do warrantless searches, and then said &quot;Oh they're a private company, 4A doesn't apply to them&quot;.</p>
<p>Can you really get around the Constitution by getting private companies to do your dirty work for you?</p>

<h2 id="probably-not"><strong>Probably not</strong></h2>
<p>Now, some US constitutional rights do get interpreted very broadly, and it's possible this might be the case here too. But fundamentally, this situation is <em>not</em> equivalent to the security contractors example you mentioned.</p>
<p><strong>The crux is that Facebook already has every right to delete your posts for whatever reason they want. A security contractor does <em>not</em> have any intrinsic right to conduct searches (warrantless or otherwise) on your person, residence or effects.</strong></p>
<p>Facebook can choose, at their sole discretion, to delete all your posts, delete none of your posts, or delete some of your posts according to whatever metric they came up with. In this case, the metric is 'did the government flag this as misinformation'. The government isn't censoring you - Facebook is, and Facebook is <em>allowed to do that</em> (they happen in this case to be following the government's advice on <em>what</em> specifically needs censoring, but where they choose to get their advice is also purely their business).</p>
<p>A security contractor, by contrast, can't do much of anything to you, except when they have been specifically deputized by the government to do so by some legal process. If this happens, then they are said to be acting 'under color of law', and suddenly First (and Eighth, etc) Amendment restrictions <em>do</em> begin to constrain their actions.</p>
<p>Facebook is not getting any kind of state power delegated to them, and thus they aren't considered to be acting 'under color of law'. They aren't doing anything they were not already allowed to do.</p>

<p>I interpret the OP entirely differently: is it legal for the government to tell Facebook to take down posts that they deem to be misinformation. There is a reasonable argument that the government's actions are contrary to the First Amendment. The other answers are focused on &quot;who to sue&quot;, on the theory that Facebook would be the respondent.</p>
<p>The mass of case law on the First Amendment is clear that the &quot;misinformative&quot; speech which was deleted <em>is</em> protected. What is not clear is where the boundaries are, in terms of what actions the government may take to suppress speech. If the government had ordered FB to delete the material under penalty of some legal punishment, that would be unquestionably an illegal act. Even if the threat was to tie them up in court forever with annoying litigation, that would be illegal.</p>
<p>The case of <a href="https://scholar.google.com/scholar_case?case=13828818702022937370&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr" rel="nofollow noreferrer">Pen America v. Trump</a> is at least in a similar legal neighborhood. Plaintiffs allege that defendant threatened them in various ways, such as going after Amazon on postal rates in retaliation for actions by the Washington Post (Bezos owns both). In this case, the threats were clear, and the court says that &quot;Plaintiff pursues each claim under two First Amendment theories: the bar against government threats that chill free speech and the bar against retaliatory government acts that punish speech. Both theories are viable&quot;. The opinion cites
Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33 saying that</p>
<blockquote>
<p>[w]here the comments of a government official can reasonably be
interpreted as intimating that some form of punishment or adverse
regulatory action will follow the failure to accede to the official's
request, a valid claim can be stated.</p>
</blockquote>
<p>It is thus possible that Facebook would have a valid First Amendment claim against the government, though they seem not to be interested in pursuing it. It really depends on the facts of the action taken by the government.</p>
<p><a href="https://scholar.google.com/scholar_case?case=11225489070024644620&amp;hl=en&amp;as_sdt=6,48&amp;as_vis=1" rel="nofollow noreferrer">Hammerhead Enterprises, Inc. v. Brezenoff</a>, 707 F. 2d 33 is also on point. In this case Hammerhead distributed a game that mocked the welfare system – clearly protected speech. Brezenoff, who was Administrator of the Human Resources Administration of New York City, sent a letter (on official stationary) to the stores, urging them to not carry the game. The letter is included in the opinion: it does not in any way threaten the stores, and the court concluded that it was &quot;a well-reasoned and sincere entreaty in support of his own political perspective&quot;. The court found that there was no 1st Amendment threat. It should be pointed out though that the court distinguished this case from Bantam v. Sullivan (threats against publishers of &quot;indecent&quot; literature) based on the lack of power retaliatory power by the government agency (POTUS has lots of power) and the apparent lack of effectiveness of the letter (no store was influenced by the correspondence). It is likely that FB was influenced by the government's correspondence, but perhaps only to the extent of making them aware of the specific content.</p>

<p><strong>NO</strong></p>
<p>Facebook has its own policies as to what to remove and what to attach a warning to. Anyone can suggest policy changes to them and anyone can flag things for Facebook to look at.</p>
<p>To get Facebook's actions to be seen as government's action you would need more direct connection - a start would be a threat of government action if the private company didn't follow the president's whims. Or suggested a boycott until his wishes about a newspaper happened, etc.</p>
<p>The closest case, as I understand it, is that of Lebron v, AMTRAK. Although technically private, AMRAK has been ruled <a href="https://supreme.justia.com/cases/federal/us/513/374/" rel="nofollow noreferrer">(Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 (1995</a>) as subject to first amendment scrutiny. It was created by the Feds, subsidized by the Feds, carries out policies of the Feds and its board controlled by the Feds. This is nothing like that. And imagine if Joe Biden did that to Fox.</p>

<p>The government cannot <strong>mandate</strong> or require that Facebook delete certain posts unless there is a law to that effect, and any such law would be subject to &quot;strict scrutiny&quot; and might well be found unconstitutional.</p>
<p>The government may not <strong>threaten</strong> Facebook with regulatory actions or other negative use of government powers in an effort to induce FB to delete certain posts. Doing so would be acting without authority to deny constitutional rights, such threats having a <em><strong>chilling effect</strong></em>.</p>
<p>The government may <strong>recommend</strong> or request that FB delete certain posts, and give reasons for this advice, provided that there is no chilling effect. One standard definition of a &quot;chilling effect&quot; is that a reasonable person of ordinary firmness would be deterred from exercising the rights involved.</p>
<p>As I understand it, FB has provided an interface to report improper posts (improper under its own terms of service and implementing rules), and has specifically invites people to report posts containing  misinformation about Covid-19, declaring that such posts violate its terms. Some government employees have used that interface to report a number of posts.  Any decision to delete rests with FB acting under the same procedures as if a report had been made by a private person. I have heard no reports of threats overt or implied of any use of government power or influence in this mater, nor of any special procedure set up to process government reports.</p>
<p>FB is of course free to delete whatever posts it sees fit to, in the absence of any law restricting that process. and so far there seems to be no such law, except perhaps for the recently passed and so-far untested Texas &quot;social media&quot; law.</p>
<p>None of the reported actinos of the Biden administration seem to be infringing on anyone's rights or violating any law or constitutional command in this matter.</p>

<p>As others have pointed out, there is no clear way to <em>definitively</em> answer this question because of the number of issues involved and no clear precedent.</p>
<p>For anyone curious, it may, however, be helpful to add information about which issues may or may not contribute to answering this question if it ever reaches the courts.</p>
<p>I will try to answer this without rehashing what's already been stipulated in the question itself or repeating (rather than referring to) the other answers which already tried to giver an overview.</p>
<p>As mentioned in <a href="https://law.stackexchange.com/a/67798/11306">this answer</a>, Hammerhead Enterprises, Inc. v. Brezenoff was decided based on the facts that the government did not have any retaliatory authority and that the stores did not actually change their behavior in response to the purported government intimidation.</p>
<p>Which was distinct from <a href="https://supreme.justia.com/cases/federal/us/372/58/" rel="nofollow noreferrer">Bantam v. Sullivan</a> decision,</p>
<blockquote>
<p>Such <strong>notices requested the distributor's &quot;cooperation,&quot;</strong> and advised him that copies of the lists of &quot;objectionable&quot; publications were circulated to local police departments, and that it was the Commission's duty to recommend prosecution of purveyors of obscenity. Four out-of-state publishers of books widely distributed in the State sued in a Rhode Island court for injunctive relief and a declaratory judgment that the law and the practices thereunder were unconstitutional. <strong>The court found that the effect of the Commission's notices was to intimidate distributors</strong> and retailers and that they had resulted in the suppression of the sale of the books listed.</p>
</blockquote>
<p>The parallel is fairly clear here.  If Facebook is a distributor of information, then requests to a distributor to quash ill-advised speech amount to intimidation.</p>
<p>But what happens to the claims that Facebook actually solicits this information from the Government to better shape its own platform?</p>
<p>This is where a timeline might get tricky.</p>
<h2>First, is it possible for political intimidation to become a deciding factor?</h2>
<p>Well, Trump's <a href="https://en.wikipedia.org/wiki/Executive_Order_13769" rel="nofollow noreferrer">1st executive order on the &quot;Muslim ban&quot;</a> was decided based on his campaign speeches as well as the text of the order itself.</p>
<p>So while, political speech is protected, its effect does not have to be ignored when deciding whether another party's rights have been diminished due to a different action (rather than the speech itself).  The decision did not reach SCOTUS because a new executive order was issued, which made the issue irrelevant.</p>
<p>But lower courts did have a chance to state that <strong>prior political speeches could be used in interpreting an executive action.</strong></p>
<h2>There is little doubt that there is a political campaign to add regulation to social media sites by both political parties.</h2>
<p>Even the CEOs of the social media sites have been subpoenaed to testify about their sites in front of Congress.  Some of the questions posited appeared to be chastising rather than formulating genuine inquiries.</p>
<p>The timeline question, which may end up deciding this, would be when the reporting tool was created by Facebook.  If the tool was created after numerous political threats, then the Government's use of this tool can be easily interpreted as Facebook acting, while under a threat of reprisal.</p>
<p>However, what if it can be shown that the tool existed, in its current form, even before any political threats were made?</p>
<p>Then such a claim, that this request for information (from the government by Facebook) amounted to intimidation, would seem unwarranted.</p>
<p>What if some political voices were heard trying to speak out against FB's political influence, but they were not loud or numerous when the tool was created?</p>
<p>Well, then the decision, on whether the Government did strong arm Facebook to enlist it in quashing ill-advised speech, would have to be resolved by a court.</p>
<p>Since Facebook would be viewed a distributor in such a case, a likely petitioner would be a professional entity which saw its professional speech suppressed.  The defendant would not be Facebook itself, however, but a government official who used the Facebook's tool to request the suppression.</p>
