Stanford Cyber Policy Center Wants Social Media Injunction ‘Reversed,' Says Amicus Brief

The Stanford Internet Observatory (SIO), the cyber policy center headquartered at Stanford University in California, was a founding member of the Election Integrity Partnership (EIP) and the Virality Project (VP), groups that improperly figured prominently in U.S. District Judge Terry Doughty’s July 4 injunction barring dozens of Biden administration officials from conversing with social-media companies about content moderation. So said the university, SIO Director Alex Stamos and Renee DiResta, SIO’s research director, in their amicus brief Friday (docket 23-30445) at the 5th U.S. Circuit Court of Appeals in support of the government’s appeal to defeat the injunction.

Electronic Frontier Foundation, in a separate amicus brief Friday in support of neither side, warned the 5th Circuit that government "co-option" of the content moderation systems of social media companies can be "a serious threat to freedom of speech." But EFF also argued there are "clearly times" when it's "permissible, appropriate, and even good public policy for government agencies and officials to noncoercively communicate with social media companies about the user speech they publish on their sites."

EIP tracked and studied misinformation, disinformation and rumors concerning U.S. elections and VP did the same for COVID-19 vaccines, said Stanford's amicus brief. Amici weren’t named as defendants in the lawsuit that spawned the injunction, “but assertions about their conduct appear throughout the underlying complaint,” it said. The complaint wrongly alleges that amici “conspired with federal officials to censor speech on social media,” it said.

The injunction barred Biden administration officials from conversing with EIP and VP before the 5th Circuit temporarily stayed it, said the proposed brief. The injunction, though binding only on the named defendants, “plainly implicates” amici’s “own interests,” it said. In participating in EIP and VP, amici were primarily engaged in academic research “concerning the spread of misinformation, disinformation, and rumors about U.S. elections and the COVID-19 vaccines on social media,” said the brief. “But they also exercised their own right to speak about their research findings on these matters of great public concern,” it said.

There’s “no question” the First Amendment protects amici’s right “to collect data about, and to study, informational trends, and to alert the public, social media platforms, and government officials to their findings,” said the brief. That includes their view “that particular posts on social media platforms are false or misleading or violate platform policies,” it said.

There’s likewise “no disputing” that the First Amendment also protects amici’s right “to make public policy recommendations to social media platforms and to government actors,” said the brief. Those recommendations concern “how to address the challenges to our democracy and to public health presented by the spread of rumors, false narratives, and propaganda online,” it said: “These are core rights -- to speech, to academic freedom, to petition -- all protected by the First Amendment.”

But Doughty’s July 4 injunction “ignored” amici’s rights, instead “repeatedly characterizing their speech as censorship,” said the brief. That’s “a remarkable inversion” of the First Amendment, and it’s “fundamentally wrong,” it said. Amici are a private research university and two academics, said the proposed brief. They have “neither the legal nor practical ability to censor anyone’s speech,” it said.

Amici aren’t government actors, “and they have no power to unilaterally change social media platforms’ policies, to take down posts, or to suspend users,” said the brief. Even in the limited cases where amici recommended policy changes “or identified instances of potentially violative content to platforms,” just as other individuals do on a daily basis, the platforms themselves always exercised “ultimate decisionmaking authority,” it said.

Doughty’s findings of censorship, and his injunction against the Biden administration defendants, “rest on numerous factual errors about basic details of amici’s work and amici’s relationships with the government and social media platforms,” said the brief. Doughty’s findings aren’t “merely erroneous,” but they also “fundamentally undermine” his decision to impose the injunction, it said. The injunction should be “reversed,” it said.

EFF's brief, also filed Friday, said the First Amendment forbids the government “from intimidating or coercing a private entity to censor, whether the coercion is direct or subtle.” But not every communication to an "intermediary" about users’ speech is "unconstitutionally coercive,” it said. The distinction between proper and improper speech “is often obscure, leaving ample gray area for courts reviewing such cases to grapple in,” it said: “But grapple in it they must.”

Doughty didn’t “adequately distinguish” between improper and proper communications in either his analysis or the preliminary injunction, said EFF. The injunction is “internally inconsistent” with the eight exceptions Doughty carved out to summarize proper government conduct, but “that seem to swallow many of its prohibitions,” it said. The injunction doesn’t provide “adequate guidance to either the government or to anyone else seeking to hold the government to its proscriptions,” it said. The 5th Circuit “must independently review the record and make the searching distinctions that the district court did not,” it said.