Social Media Injunction Has Already Chilled Researchers’ 'Freedom': Coalition

The 5th U.S. Circuit Appeals Court’s Oct. 3 ruling that affirmed the district court’s injunction barring federal officials from conversing with social media companies about moderating their content (see [Ref:2310040001) “threatens to imperil independent research in the digital technology area,” said the Coalition for Independent Technology Research in a U.S. Supreme Court amicus brief Tuesday (docket 23-411) in Murthy v. Missouri in support of the government petitioners’ efforts to defeat the injunction.

The 5th Circuit’s “expansive view” of what counts as state action “undermines the ability of researchers” to seek information from government and technology companies and to “share the results of their research with government officials and technology platforms, said the brief. It also undercuts researchers’ ability “to freely make technological and policy recommendations to them,” it said. The coalition filed its brief “to ensure that these core First Amendment rights are not a casualty” of the 5th Circuit’s ruling, it said.

The coalition agrees “there are real reasons to be concerned” about the “outsized influence” that large tech companies have “on our discourse,” said the brief. The coalition also agrees government actors “may not, consistent with the First Amendment, threaten private parties in order to coerce them into suppressing or excluding disfavored speech,” it said.

Like “direct restraints” on speech, such indirect efforts by officials to suppress speech “are inconsistent with any commitment to free and open debate and inquiry,” said the brief. But the 5th Circuit’s ruling in this case “extended well beyond those circumstances,” and did so in a manner that, if left undisturbed, “will significantly inhibit communications vital to conducting and disseminating technology research and sharing accumulated expertise with both government and the platforms,” it said.

Under the First Amendment, researchers “enjoy the freedom to study the political and social effects of digital technologies and to publish the results of their research,” said the brief. They do so “regardless of whether it aligns with, or is highly critical of,” tech companies or government policy, it said. That research “frequently depends on the willingness of government officials to share information with researchers,” it said.

The researchers’ expertise, in turn, “contributes to a better informed citizenry and more informed policy-making,” said the brief. All of those activities -- researching social media platforms, communicating with the platforms, government and the public about that research and making recommendations to each -- are “squarely protected under the Constitution,” it said.

But the 5th Circuit’s decision “threatens those activities,” said the brief. It does so by providing “doctrinal support” for characterizing “routine and non-coercive interactions” between researchers and government as state action, permitting researchers to be falsely branded as “arms of the state,” it said. The result “is to expose all manner of their private speech to constitutional constraints,” plus invite “unwarranted judicial scrutiny and micro-management of that speech,” it said. That is itself “contrary to the First Amendment,” it said.

The effect of the 5th Circuit’s ruling will be -- and has already been -- to infringe on coalition members’ rights, said the brief. It has chilled government officials and tech companies from engaging “in routine interactions” with coalition members, it said. It has caused those “otherwise-willing speakers to steer well beyond what is strictly required by the injunction at issue to avoid any even arguable violation,” it said.

The 5th Circuit’s ruling also exposes researchers in this space to “burdensome litigation,” plus “invasive and unbounded legislative targeting,” said the brief. It lends “doctrinal credence” to the false notion that “non-coercive interactions between researchers and government somehow convert independent researchers into tools of the state,” it said.

Several coalition members “have already been sued on that basis” in the same Western Louisiana district court where this action originated, said the brief. Others have been hauled before Congress “to be confronted about their research,” it said.

The “great irony” of this case is that the goal that “animated” the lawsuit in the Western District of Louisiana “will be directly undermined” if SCOTUS affirms the 5th Circuit’s ruling and coalition members “are effectively unable to conduct and publish independent research,” it said. The coalition urges that SCOTUS “preserve researchers’ freedom to inquire, to gain understanding, and to engage with relevant stakeholders by adhering to its prior precedents limiting the conduct that can constitute state action,” it said.