How a right-wing judge got social media and free speech dead wrong

Right-wing legal ideologues have a favorite U.S. trial judge: Terry Doughty of the Western District of Louisiana. 

In a startling decision released with apparently symbolic timing on July 4, Doughty imposed a sweeping preliminary injunction barring the federal government from communicating with social media companies about reducing disinformation about public health priorities, attempts to undermine elections and other topics of civic importance.  

The plaintiffs — a pair of red state attorneys general and a collection of anti-vaccination activists and conspiracy theorists — shopped for a judge they had every reason to believe would endorse the existence of a “censorship enterprise” consisting of liberal political operatives, deep state bureaucrats, ivory tower leftists and executives at Facebook and Twitter. 

In earlier cases, Doughty has blocked the White House from curbing oil and gas leasing on federal lands, requiring that health care workers get vaccinated and mandating that Head Start teachers also receive COVID-19 protection. Still, even in their most optimistic dreams, the Republican attorneys general of Louisiana and Missouri couldn’t have envisioned an order quite as comprehensive as Doughty’s July 4 injunction barring federal agencies ranging from the Federal Bureau of Investigation to the Office of the Surgeon General from communicating with social media platforms. 

Doughty’s dubious notion that there is a First Amendment right to spread socially harmful disinformation could well become constitutional law. He is overseen by the right-wing-dominated U.S. Court of Appeals for the Fifth Circuit, which, in turn, answers to a Supreme Court now featuring a six-member conservative supermajority, including three Trump appointees. 

But Doughty is wrong on both the law and the facts. And his muddled ruling obscures the need for a more structured, transparent mechanism for the government to communicate with the social media industry about harmful content. 

Bungled law: Government efforts to regulate or otherwise influence speech carried by private outlets have produced a substantial body of judicial precedent, which Doughty thoroughly mangles. Just one example: He asserts that “it is the purpose of the Free Speech Clause of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market, whether it be by government itself or private licensee.”

As authority for the point, he cites a 1969 Supreme Court precedent, which actually undercuts Doughty’s reasoning. The high court ruled that in some circumstances, the government may regulate and even compel speech on private platforms.  

Throughout his 155-page opinion, Doughty fails in the basic judicial task of balancing competing interests — in this case, the legitimate government interest in interacting with privately owned speech outlets to promote the public good versus the danger of unconstitutional censorship.  

False “facts”: In his lengthy opinion, Doughty restates the plaintiffs’ factual assertion — an article of faith in conservative circles — that social media companies systematically silence right-leaning speakers. But as I argued in a report published in February 2021 by the NYU Stern Center for Business and Human Rights, there is no reliable research supporting the accusation of bias. On the contrary, the research there is shows that social media algorithms tend to amplify conservative political content. 

Republican-led House hearings in February, which were designed to dramatize the unfounded assertion of anti-conservative bias, in fact, did the opposite. The hearings produced credible testimony that before Elon Musk’s takeover in 2022, Twitter had bent and broken its rules to favor followers of former President Donald Trump and Trump himself, largely out of fear of right-wing backlash. 

Bipartisan scrambling, not conspiring: Since the Obama administration, government officials have communicated extensively with social media companies to try to reduce the spread of terrorist incitement, depictions of child sexual abuse and, more recently, disinformation about the pandemic and elections. Seeking to pin blame exclusively on the Biden administration, Doughty casually dismisses as irrelevant that under the Trump administration, officials with the FBI, the Cybersecurity & Infrastructure Security Agency, and other parts of the government routinely suggested that platforms consider removing harmful content. As president, Trump himself used social media posts, an executive order, and proposed legislative amendments to threaten the platforms with adverse regulatory action or even a potential shut-down if they did not bend to his will. 

The impression a fair reader of the historical record comes to is that Biden administration officials were scrambling in a chaotic environment to keep up with a virtually limitless flow of misleading and sometimes dangerous information. On the company side, line employees and their bosses sometimes welcomed government input, but also sometimes slow-walked or outright rejected advice from Washington. 

The missed opportunity: The blatant partisanship of Doughty’s ruling obscures the real issues lurking in this case. The Biden administration, and the Trump administration before it, have interacted with social media companies in an ad hoc way that, in some instances, may have constituted improper government pressure on private speech outlets. If a scrupulous judge made careful factual distinctions and accurately brought to bear relevant legal precedent, the result might have pointed to what is clearly needed: an explicit and transparent set of rules for both government and industry that could channel communication between the two. These rules could establish procedures and limitations for such interaction, encouraging regular exchanges about societal threats while forbidding anything approaching coercion.  

Sadly, the Doughty injunction seems calculated to further inflame conspiracy-minded conservatives rather than shed light on difficult questions concerning free speech on the internet and how to protect our democracy from corrosive falsehoods.      

Paul M. Barrett is the deputy director of the Center for Business and Human Rights at New York University’s Stern School of Business.