6

We have recently learned that the Biden administration is flagging Facebook posts 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 "Oh they're a private company, 4A doesn't apply to them".

Can you really get around the Constitution by getting private companies to do your dirty work for you?

4
  • It's likely important whether the company is doing so voluntarily and has enlisted government assistance in finding posts that they wanted to take down anyway, vs being compelled, paid, etc. to do so. That said, I'm not sure if there's any relevant precedent in either direction.
    – Ryan M
    Jul 16 at 21:12
  • "Telling" suggests a mandatory order. I don't see any allegation of that in the linked article, only that the government is requesting or suggesting that Facebook take the posts down. Facebook is free to decline without any negative consequences except maybe public criticism (by the government or others). So I'd suggest removing the word "telling", or else emphasize that you are asking about something hypothetical. Jul 17 at 1:43
  • 1
    You have not entertained the idea that Mark Zukerburg thinks the antivaxx movement is a blight on society and wanted those post removed regardless of what anyone else wants.
    – Neil Meyer
    Aug 6 at 21:15
  • Questions like this make me wonder, how far does this new doctrine go? Is there also a First Amendment issue with, say, the President telling football players not to kneel during the national anthem? Or asking a football league to fire players who do? It’s protected speech. Can the government tell the NFL to do its dirty work for them? Or on the other side: if it’s fine, can the government ask media companies not to hire Communists, and helpfully provide lists of Communists? Perhaps using their congressional subpoena power to investigate and look for them?
    – Davislor
    Oct 8 at 7:14
4

Probably not

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 not equivalent to the security contractors example you mentioned.

The crux is that Facebook already has every right to delete your posts for whatever reason they want. A security contractor does not have any intrinsic right to conduct searches (warrantless or otherwise) on your person, residence or effects.

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 allowed to do that (they happen in this case to be following the government's advice on what specifically needs censoring, but where they choose to get their advice is also purely their business).

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 do begin to constrain their actions.

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.

5
  • I'm not saying Facebook can be punished for this, just that the government can't tell or help them do it. Somewhat similar to how sitting politicians can't block people on Twitter. It would kinda undercut that ruling if they could just get FB et. al. to do it for them.
    – Ryan_L
    Jul 16 at 22:08
  • 4
    As far as I can see, they are not 'telling' Facebook to do anything, they are asking, and Facebook is voluntarily complying. Analogously, Joe Biden can't force his way into your house and go through your stuff against your will (because of the Fourth Amendment), but he can ask politely if he can come in, and you can let him in and volunteer to give him a tour - if you want to.
    – Drubbels
    Jul 16 at 22:15
  • 2
    Could Joe Biden ask my landlord for a tour against my wishes? That seems like a more pertinent analogy.
    – Ryan_L
    Jul 16 at 22:20
  • 3
    @Ryan_L: If he's thinking about renting your apartment after you leave, either on his own behalf or for government use, sure he can. Your lease surely states that the landlord can give such tours without your approval, so long as you are given sufficient notice, and you agreed to that when you signed the lease. Likewise, Facebook's TOS states that they can take down users' posts without their approval, and Facebook users agreed to that when they signed up. Jul 17 at 1:47
  • @Ryan_L that analogy is somewhat inapt because the landlord does not have the right to enter your dwelling, except under very limited circumstances, much less to go through your stuff. By contrast, Facebook does have the right to censor its users.
    – phoog
    Jul 17 at 17:32
4

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 "who to sue", on the theory that Facebook would be the respondent.

The mass of case law on the First Amendment is clear that the "misinformative" speech which was deleted is 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.

The case of Pen America v. Trump 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 "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". The opinion cites Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33 saying that

[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.

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.

Hammerhead Enterprises, Inc. v. Brezenoff, 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 "a well-reasoned and sincere entreaty in support of his own political perspective". 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 "indecent" 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.

7
  • 4
    You start with “is it legal for the government to tell Facebook to take down posts that they deem to be misinformation” it would be a problem if this was a government order or a request accompanied by a threat. A suggestion is not an order. Jul 17 at 0:42
  • 3
    @GeorgeWhite I don't think that difference is really that crucial. Most courts would analyze the question by asking whether the government action is likely to chill a speaker of ordinary firmness, not whether the government gave an order or made a threat. I'm not sure the answer is correct yet, but it's definitely the best one we've got so far.
    – bdb484
    Jul 17 at 18:23
  • I’m wondering if the administration simply goes ahead and filed suit is the appropriate course of action? I feel like it is. It doesn’t have a covenant of good faith and fair dealing or any legal or contractual duties to imply or express any threats that may have a chilling effect. And since they use public funds those who file should be personally on the hook to not file frivolous or malicious suits. And if they die, the action should be subject to exemplary damages, no government exemptions to prevent abuse.
    – kisspuska
    Jul 17 at 21:24
  • 2
    @grovkin That might go a little too far. I think it's a reasonable argument, but I doubt the courts would accept the idea that the First Amendment prohibits the government from requesting or suggesting changes in people's speech. Certainly the police can put up "See something, say something" posters without facing lawsuits alleging that they're compelling every passerby to snitch, "or else."
    – bdb484
    Oct 3 at 18:42
  • 1
    @bdb484 "see something, say something" is a far cry from "persons X,Y and Z have said something we'd rather not hear said." Even if the request is made in the interest of public policy, it's not a request (for example) for information. It's a request to quash speech. The question is whether the Constitution allows the government to form public policy around quashing messages present in some, however ill-advised, speeches.
    – grovkin
    Oct 3 at 21:00
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NO

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.

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.

The closest case, as I understand it, is that of Lebron v, AMTRAK. Although technically private, AMRAK has been ruled (Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 (1995) 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.

4
  • The only way I see a fourth amendment issue is if the Facebook company by some plot kept you from starting your own website. I'm not entirely sure how this would be possible though.
    – Neil Meyer
    Aug 6 at 21:09
  • 1
    In other words, Biden is asking, not ordering, FB to act.
    – ohwilleke
    Aug 6 at 21:12
  • @ohwilleke it's still coercive. Given the imbalance of power, there doesn't need to be an "or else" attached to a request for it. The "or else" is always implied when the Government makes a direct request. When governments lose good bond ratings, their traditional response to the rating agencies is "we respectfully disagree" rather than "please, reconsider." Is is an accepted wisdom that the latter would be seen applying pressure rather than expressing an opinion.
    – grovkin
    Oct 3 at 14:14
  • 2
    @grovkin As a matter of empirical reality there maybe some truth to that. As a matter of law, not so much.
    – ohwilleke
    Oct 4 at 19:31
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The government cannot mandate or require that Facebook delete certain posts unless there is a law to that effect, and any such law would be subject to "strict scrutiny" and might well be found unconstitutional.

The government may not threaten 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 chilling effect.

The government may recommend 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 "chilling effect" is that a reasonable person of ordinary firmness would be deterred from exercising the rights involved.

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.

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 "social media" law.

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.

0

As others have pointed out, there is no clear way to definitively answer this question because of the number of issues involved and no clear precedent.

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.

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.

As mentioned in this answer, 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.

Which was distinct from Bantam v. Sullivan decision,

Such notices requested the distributor's "cooperation," and advised him that copies of the lists of "objectionable" 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. The court found that the effect of the Commission's notices was to intimidate distributors and retailers and that they had resulted in the suppression of the sale of the books listed.

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.

But what happens to the claims that Facebook actually solicits this information from the Government to better shape its own platform?

This is where a timeline might get tricky.

First, is it possible for political intimidation to become a deciding factor?

Well, Trump's 1st executive order on the "Muslim ban" was decided based on his campaign speeches as well as the text of the order itself.

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.

But lower courts did have a chance to state that prior political speeches could be used in interpreting an executive action.

There is little doubt that there is a political campaign to add regulation to social media sites by both political parties.

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.

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.

However, what if it can be shown that the tool existed, in its current form, even before any political threats were made?

Then such a claim, that this request for information (from the government by Facebook) amounted to intimidation, would seem unwarranted.

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?

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.

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.

-3

It's the internet not real life. Facebook is the intellectual property of a company. There is no rights afforded that guarantees it's usage. The company that operates this piece of property can revoke anyone's usage at its own discretion. It answers to no one but itself.

If Mark Zukerburg wants to remove posts from his message board then he is entitled to do so for the same reasons you can ask any guest to leave the house you own. Websites are property. I know the internet embodies the free market place of ideas to a great extent, but know you own websites like you own a house.

This would be like the New York Times asking the public to send articles and then you claiming a 4th amendment issue when they choose not to publish the article you sent in.

5
  • You don't understand the issue. It's not that Facebook removes posts, it's that the government recommends they do.
    – Ryan_L
    Aug 6 at 21:27
  • The motivations for why people exercise there right can be infinite. You seem to be under the impression that the Facebook is doing this under duress, but it can be that these post are post they wanted to delete anyway and the fact that it keeps them in Biden's good books may just be a bonus.
    – Neil Meyer
    Aug 6 at 21:32
  • If Facebook's moderators use their intuition to decide Biden would want posts removed, there's no issue here. The problem is Facebook is removing posts on the recommendation of Biden's staff. I'm not suggesting Facebook can be held responsible for this, but it seems like the courts could hold Biden accountable.
    – Ryan_L
    Aug 6 at 21:36
  • The government can't censor people, but apparently they can get private corporations to do it for them?
    – Ryan_L
    Aug 6 at 21:48
  • @Ryan_L the government can in some cases censor people, but laws, regulations, or official action to that end generally face strict scrutiny, and most often are not upheld. Oct 7 at 1:10

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