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How much control should a government have over citizens' social media content?


How much should the U.S. government try to influence social media content even if that content includes lies? A federal appeals court blocked some federal agencies from contacting platforms like Facebook, YouTube and X - formerly Twitter - about content moderation. The court says the U.S. government may have coerced the social media companies to violate people's First Amendment rights by blocking content, including misinformation about government COVID-19 initiatives and the recent elections. To talk more about this, we've called someone who studies the intersection of government and technology. Mark MacCarthy is a nonresident senior fellow at Brookings, which is a research institute, a so-called think tank. His forthcoming book is "Regulating Digital Industries."

So there's this whole backstory to this, which we don't have time to review in detail. But just briefly, conservatives have complained that the administration's trying to coerce social media platforms into silencing their views. Others, including the administration, say they're just trying to keep social media from spreading toxic misinformation that can harm people. So if you're just tapping into this story, at first look, Friday's ruling would appear to be a panel of conservative judges seeking to limit the powers of a liberal executive branch. But you were telling me it is just not that simple. Take it from there.

MARK MACCARTHY: It's not that simple. Federal officials, according to the court, did run afoul of the First Amendment by coercing and significantly encouraging the social media platforms to censor disfavored speech. And they did this by threats of adverse government action like antitrust enforcement and legal reforms. But the court also agreed with the critics in the administration that the original injunction was vague and overly broad, and they significantly narrowed that injunction.

MARTIN: How might people who use social media feel the impact of this?

MACCARTHY: Well, I think everyone should be concerned about the government conduct in this case. I mean, government officials did threaten social media companies with antitrust action and repeal of favorable legal protections. And, you know, we've seen that the Trump administration officials were not shy about trying to intimidate social media companies to go easier on conservative voices. And they might well try to do it again or to discriminate against progressive voices if there's another Trump presidency. So guardrails on government interactions with social media companies are needed to protect all speech, not just conservative speech.

MARTIN: On the other hand, as I'm sure you certainly know, that critics have become very alarmed that the, you know, antisemitic, racist, misogynistic, you know, violent sort of themes have just kind of exploded in recent years, months, you know, whatever time period you want to pick. And so the question is, does the government have any options to discourage the spread of disinformation on social media without trampling on Americans' First Amendment rights? I know that's a big topic, but what do you think?

MACCARTHY: I think the government can clearly talk to social media companies about anything. And it can refer them to any - it can refer any speech to them that they think is harmful or illegal. But it may not coerce or significantly encourage a social media company to such a degree that the choice really becomes that of the government. This is a well-known, if not entirely clear, standard that's drawn from previous court cases.

The Fifth Circuit tried to get at this issue with a new injunction. It said the agencies may not coerce or significantly encourage social media companies to remove content. It said it may not intimate that some form of punishment will follow a failure to comply with a request. And it said agencies may not meaningfully control the social media company's decision. Is that clear enough? I don't think so. I think the DOJ will appeal to get the Supreme Court's judgment and seek a more actionable standard.

MARTIN: That is Mark MacCarthy, nonresident senior fellow at Brookings. His book "Regulating Digital Industries" is out in November. Mr. MacCarthy, thanks so much for joining us and sharing these insights with us.

MACCARTHY: Thanks very much for having me. Transcript provided by NPR, Copyright NPR.

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