Picture a Republican administration “engaging” with social media companies to “recommend” that they delete or slow the spread of posts discussing voter suppression. Why? Because the White House’s experts have “debunked” most of the claims, and the rest, even if not “provably false,” nevertheless are “dubious.”

Imagine that some of the “requests” are as specific as this: “[W]anted to flag the below tweet and am wondering if we can get moving on the process of having it removed. ASAP.” And just in case the companies miss the point, suppose that an administration official states publicly that the White House “is assessing whether social-media platforms are legally liable for misinformation spread on their platforms.”

I’d like to think we’d all be outraged.

We should all be similarly outraged by the Joe Biden administration’s effort to police “misinformation” on COVID-19 on social media platforms, a campaign from which all the above quotes are taken. For reasons I’ll come to, I doubt that last week’s preliminary injunction by a Louisiana federal judge aimed at halting the program will stand up on appeal. But the likelihood that the order will be narrowed doesn’t reduce the extent to which the White House’s actions rest on principles antithetical to democracy.

No joke.

When the lawsuit was first filed, I was skeptical. The feds jawbone companies all the time. Now, having made my way not once but twice through Judge Terry A. Doughty’s 155-page opinion, I find myself stunned and depressed at the degree to which the Biden administration, from its first days in office, has used its influence to limit the audience for views that differ from its own.

To occasionally ask for a story to be held on national security grounds (in most cases, temporarily), or even to ask a personal favor regarding a post or two would be business as usual — subject to abuse, yes, but generally minor in scope. What makes this case different and even scary is the systematic nature of what the White House has been doing — from the micromanagement of which posts should come down to demanding regular reports on compliance.

The opinion is impossible to summarize, so let me just set forth a handful of examples.

Consider the issue of COVID vaccine hesitancy. My wife and I are both pro-vaccines. We’re happily vaccinated and fully boosted. But it’s absurd to suppose that no rational person could fear the unknown risks of newly approved medications. Long-term problems are exceedingly rare, but they certainly exist. Yet the administration pressed hard, and successfully, for the removal or downgrading of posts counseling hesitancy.

Consider the case of the novelist Alex Berenson. Maybe his views on COVID vaccines are hooey that the rest of us should ignore. But what I hadn’t known until read Doughty’s opinion is that Twitter took action to suspend Berenson’s account only after the White House demanded to know why he hadn’t been “kicked off” the platform; or that the decision was made within hours of Biden’s public criticism of how social media companies were handling “misinformation” about the pandemic.

The opinion also details the administration’s efforts to reduce the spread of claims that prior infection with COVID-19 conferred some protection, at a time when experts were hotly debating whether illness and recovery created a durable natural immunity. Similarly, the White House successfully pressured the platforms to downgrade and in some cases delete posts and videos that criticized lockdowns or mask mandates. The examples go on and on. Whatever one thinks of any single instance, the overall picture is one in which the government seeks to establish an official position on an issue of public importance, and then, through pressure on social media companies, makes it difficult for those who disagree to find an audience.

That’s the very definition of restricting dissent; and labeling dissent as “misinformation” in no way broadens the authority of government to regulate debate.

It’s not sufficient to respond that the companies might have barred a lot of this content anyway. Most of the posts detailed in Doughty’s opinion did not violate platform policies; nevertheless, the White House succeeded in getting the companies to downgrade, label or remove them entirely.

How great was the pressure? Sufficiently great that a Facebook executive responded to one official by assuring the administration that the company wanted to know how to “get back into the White House’s good graces.” Another wrote: “[W]e’re keen to amplify any messaging you want us to project.” And, again, these are only a few examples of the efforts by the platforms to please officialdom.

I don’t blame the social media platforms for cooperating with the campaign. They’re businesses for profit, obligated to protect shareholders from unspoken threats down the line. When government pressures others to suppress speech, the blame rests entirely on the government. (And if you’re wondering about corporations pressuring other corporations, that issue raises no First Amendment problems. Nevertheless, it’s an important challenge, and one worth monitoring.)

My criticisms aren’t partisan. I thought the Donald Trump administration’s pandemic response, with the exception of Operation Warp Speed, was terrible. And I appreciate that the Biden administration officials who pushed the platforms to restrict dissent over COVID policy thought they were doing the right thing — maybe even helping to save lives. But to borrow from my colleague Bruce Ackerman, the constitutional structure is designed to economize on virtue. The system’s rules do not depend on the motives of those in charge. And suppressing speech with the best of intentions is still antithetical to democracy.

True, the pandemic was an emergency. Lives really were at risk. But the existence of an emergency doesn’t cancel the freedom of speech. When the government makes swift decisions out of a sense of urgency, it is more likely to err, not less. Thus dissent is of even greater importance; and suppressing it is even more contrary to the public interest. Moreover, whatever the justification in the past, the emergency is now over by the government’s own admission. Yet as described in Doughty’s ruling, the administration’s pressure on social media companies continues, and is growing to encompass other issues.

Given all of this, why do I think the injunction is unlikely to stand? For one thing, although the First Amendment restricts the use of official power to pressure private entities to suppress speech, the contours of the prohibition remain largely unexplored. Second, because the injunction itself might well be overbroad in the degree to which it prohibits contacts between the government and the social media companies. Therefore, I wouldn’t be a bit surprised if the court of appeals stayed the injunction and sent the case back to Judge Doughy with orders to be more specific about what he intends to prohibit.

But an appellate victory won’t vindicate what the administration has been up to. Among the pillars on which democracy rests are the right to vote and the right to engage in free and open debate. Suppression of the second is every bit as undemocratic as suppressing the first.

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©2023 Bloomberg L.P. Visit bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.

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