Federal Officials Can Keep Pressing Tech Platforms To Remove Content for Now, Court Says

Court puts order blocking Biden administration from pressing for social media content moderation on hold. The U.S. Court of Appeals for the 5th Circuit put on temporary hold an order blocking federal officials from pressuring social media companies to suppress certain accounts, posts, or types of information. "A temporary administrative stay is GRANTED until further orders of the court," states the 5th Circuit's order, issued Friday.

It deferred ruling on the Biden administration's motion for a stay pending appeal "to the oral argument merits panel which receives this case," which means those judges will decide whether to lift the current administrative stay or keep things on pause until the full appeals process plays out.

The court also expedited the case to the next available oral argument slot, meaning an appeals court panel will hold a full hearing on the case as soon as possible.

It did not elaborate on its reasoning for issuing the temporary stay.

First Amendment lawyer Robert Corn-Revere recently wrote for Reason about this case (Missouri v. Biden), suggesting that "the political noise surrounding the case is distracting attention from the important First Amendment principles at stake."

Corn-Revere cites Judge Richard Posner in Backpage.com, LLC v. Dart: A public official who "threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority…or in some less-direct form." (In that case, an Illinois sheriff pressured credit card companies to stop doing business with Backpage.)

A ruling that federal authorities must limit flagging online speech to encourage its suppression or removal by tech platforms should be viewed by free speech defenders as an unambiguously good thing.

But the lower court's decision in Missouri v. Biden—the decision now on temporary hold—has attracted a lot of criticism in some corners that should know better.

For instance, The Washington Post called the initial order "a victory for conservatives" and warned that it "could have a major chilling effect on contacts between tech companies…and a broad swath of federal agencies"—as if that's a bad thing! The Post piece, and many others, portray the ruling as something only the political right could support.

In the lower court's ruling, U.S. District Judge Terry A. Doughty banned all Department of Justice and FBI employees plus many federal public health officials from "meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content," and "specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech."

That's a good thing—even if the motives of the parties who spurred this decision might not be so pure, and even if Doughty's ruling was a little too credulous of their claims.

The case was brought by the Republican attorneys general (A.G.s) of Louisiana and Missouri, as part of a beef with the Biden administration over pressuring tech companies to take down some conservatives' posts. "State A.G.s are unlikely defenders of the First Amendment given the members of that fraternity who make their political bones by mounting anti-speech crusades," notes Corn-Revere.  And on "the same day Missouri v. Biden came down, [Missouri A.G. Andrew] Bailey was one of seven state A.G.s who sent a threatening letter to Target warning that the sale of LGBTQ-themed merchandise as part of a 'Pride' campaign might violate state obscenity laws."

So, Bailey is not exactly a stalwart and unwavering defender of First Amendment principles.

And Doughty's opinion "credulously accepts plaintiffs' claims that almost all of the contacts with government officials (and some civilians) were coercive, and it uncritically accepts assertions that 'only conservative viewpoints were allegedly suppressed,'" notes Corn-Revere. Doughty also makes a number of other puzzling assertions in his (now on-hold) 155-page ruling.

None of this has helped "the perception that he has signed on to a side in the culture war."

But it doesn't mean that Doughty's decision is totally without merits, either.

"The district court's ruling in Missouri v. Biden rightly recognizes the serious threat government pressure tactics pose to free speech online," as the Foundation for Individual Rights and Expression put it.

This sort of backhanded pressure on social media has come to be known as "jawboning." Robby Soave took a deep look at the issue for Reason's March 2023 cover story.

Perhaps the 5th Circuit's temporary hold on the order is "the right call given the scope of the order and the many questions it raises," suggests Corn-Revere. But "while the court of appeals should clarify and narrow the terms of the injunction, reversing it would be a mistake. It doesn't require an active imagination to predict how far a future administration (of either party) might venture if the courts greenlighted this level of governmental meddling in private moderation decisions."

As Posner wrote in Dart, a government body "is entitled to say what it wants to say—but only within limits." Getting more clarity on those limits can only be good for free speech, no matter which point of the political spectrum you're on.

FREE MINDS

GOP candidate defends "limited role of government" in parental decisions for transgender kids. Reason's Joe Lancaster offers a highlight from last Friday's Republican Party presidential forum. The forum was presented by Blaze Media and hosted by Tucker Carlson.

Carlson's second guest was former Arkansas Gov. Asa Hutchinson, a long-shot candidate currently polling at 1 percent in a statistical tie with "Someone else." Carlson's first question related to Hutchinson's 2021 veto of H.B. 1570, an Arkansas bill that would have prohibited medical professionals from providing any medical treatment to minors related to gender transitioning, including puberty blockers and gender reassignment surgeries. It also did not include a grandfather clause, meaning any minors who were on hormone therapy when the law went into effect would either have to stop or seek treatment across state lines. (State lawmakers overrode Hutchinson's veto, but the law is currently on hold pending litigation.)

"Have you reassessed your view on it since then?" Carlson asked.

Hutchinson stood behind his decision. "What I believe in is that parents ought to raise their children," he said. "I believe that God created genders and that there should not be any confusion on your gender. But if there is confusion, then parents ought to be the ones that guide the children."

To be clear, Hutchinson is no progressive radical on the issue: He accused some public schools of "pushing transgenderism" and said, "If there had a been a bill that said you should not ever have transgender surgery as a minor, I would sign that in a minute, because no parent should be able to consent to that permanent change." (Under American Academy of Pediatrics guidelines, surgery for minors should only be pursued "on a case-by-case basis" and include "multidisciplinary input from medical, mental health, and surgical providers as well as from the adolescent and family.")

But unexpectedly for a candidate running to be the leader of the Republican Party, Hutchinson offered a qualified yet nuanced defense of transgender care for minors from the perspective of limiting the role of government and supporting the rights of parents.

"I believe in a limited role of government," Hutchinson said. "I don't think that California ought to be able to tell parents, 'You need to have gender-affirming care for children.' The government should not do that. And in the same way, let's keep the government out of it unless it's [an] extreme case, and let's let parents guide the children."

FREE MARKETS

Some common sense about Diet Coke and cancer. The World Health Organization's (WHO) International Agency for Research on Cancer (IARC) is once again warning that the widely used artificial sweetener aspartame could possibly cause cancer. Aspartame is found in many diet soft drinks and an array of other popular sugar-free goods. "But before anyone panics about whether their favorite sugar-free treat will give them cancer, it's essential to understand what the IARC does and doesn't do," writes Guy Bentley, director of consumer freedom at Reason Foundation (the nonprofit that publishes this magazine):

The IARC examines products and activities that may represent a cancer hazard and places them in one of four groups depending on the strength of the evidence they examine. Group 1 is carcinogenic to humans and includes cigarettes—but also hot dogs. Group 2a is probably carcinogenic and includes red meat and night shift work. Group 2b is possibly carcinogenic, and Group 3 is not classifiable.

The IARC placed aspartame in Group 2b, meaning there's weak evidence, and they can't say for sure whether there is, in fact, any cancer hazard. For context, pickled vegetables and aloe vera are also in Group 2b. The IARC examines cancer hazards even if they're extremely unlikely. It doesn't examine risk, which is what truly matters to consumers when making their everyday choices.

In conjunction with the IARC's investigation, the WHO's Joint Expert Committee on Food Additives (JECFA) released a recommendation on safe intake (considering all possible health risks, not just cancer risk). It concluded that its previous threshold of 40 milligrams per kilogram as an acceptable daily intake was sound.

"The average American male weighs 197.9 pounds, this translates to an acceptable daily intake of 3,588 mg of aspartame, meaning it would take around 18 diet sodas a day to surpass the JECFA's guidelines," notes Bentley. "Even the heaviest consumers of diet drinks come nowhere close to meeting this threshold. These guidelines are also significantly below any dosage linked to possible harm in animal studies."

QUICK HITS

• Video footage released by the Los Angeles County Sheriff's Department shows a deputy twice punching a woman in the face as she holds a small baby. Los Angeles County Sheriff Robert Luna said this was "completely unacceptable" and that the case would be sent to county prosecutors for possible criminal charges.

• RIP to Anchor Steam beer, which "may have changed the course of the entire American beer industry."

• A Virginia law requiring age verification for visitors to web porn platforms is now in effect. The law led Pornhub to block access to people in Virginia, reports WTOP News, and "more people are searching for Virtual Private Networks (VPN) in Virginia than in any other state in the country, according to Google Trends."

• "Twitter has changed the settings of every user with open DMs, blocking non-Twitter Blue subscribers from messaging them," notes Mashable.

• RFK Jr. "is — as he has been for his entire career — a lunatic and a crank," suggests Josh Barro. But Barro also argues that the whole idea of a Kennedy "dynasty" is "absurd." Dynasties should be "built around good families who share positive traits, like sobriety, thrift, and public-spiritedness," writes Barro. "The Kennedys are the opposite of this — they are a cadre of reckless, womanizing, substance-abusing mediocrities of middling IQ, who have produced a staggering array of displays of bad judgment and poor character over the decades."