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Judge bars federal agencies from combating disinformation on social media

MICHEL MARTIN, HOST:

So another social media app, another way to stay in touch, but also another way to spread fake remedies for real diseases, to spread so-called health information that's totally wrong or for malicious actors to try to amp up dissension by planting fake stories. Those are all types of disinformation that the Biden administration wants to fight, preferably by working with Meta and other tech companies. But for now, it is restricted from doing so by a federal judge's injunction. The Justice Department is appealing the ruling, but it is already having an impact. The Washington Post report said the State Department canceled a meeting yesterday with Facebook officials to talk about preparations for the 2024 election. Leah Litman is a law professor at the University of Michigan who has been analyzing the issue. And she's with us now to tell us more about it. Good morning.

LEAH LITMAN: Good morning.

MARTIN: So you co-wrote a piece in Slate where you make it clear that you think the legal reasoning in this injunction is totally flawed. You said, for example, while there are, in theory, interesting questions about when and how the government can try to jawbone private entities to remove speech from their platforms, this decision doesn't grapple with any of them. And you have a lot of other strong words in this piece. But having said that, I want to focus on the impacts of this. What are you most concerned about?

LITMAN: I'm most concerned about how it impedes the federal government's ability to start having these conversations about how to clamp down on misinformation in the lead-up to the election. You know, those are plans that require long-term planning. And those things need to be getting off the ground now, particularly as we are seeing a proliferation of new apps like Threads. And so the federal government needs to be able to have conversations with social media companies about their content moderation policies in order to tamp down the spread of disinformation.

MARTIN: You also talked about how - that this has effectively issued a prior restraint on large swaths of speech. Tell me more about that.

LITMAN: So a prior restraint just means that the federal government or a government stops speech before it even happens. And what the district court did here is it issued an injunction that sweeps so broadly, it literally prevents the federal government from sending emails to social media companies about their content moderation policies or having meetings with social media companies about taking down speech and posts. And so that prevents speech, really important speech, from ever happening. And that's what we call in law a prior restraint.

MARTIN: And you also said it raises separation of powers concerns. Could you talk about that?

LITMAN: So we usually think about the separation of powers as the different branches of government - the judiciary, the presidency, Congress - kind of staying in their lanes and allowing one another to function. And here you have a single district judge in Louisiana ordering the federal government to halt meetings with these incredibly important companies. His injunction applies to not just the State Department, which already had to cancel meetings with Facebook, but also the Department of Homeland Security, the Department of Justice, the Federal Bureau of Investigation and a bunch of high-ranking federal officials. And we usually don't think that single district court judges should be able to order around the entire DHS, DOJ and FBI.

MARTIN: So the injunction's restrictions are temporary. But is part of the concern here that this case could end up having lasting effects on efforts to combat disinformation?

LITMAN: They definitely could have lasting effects. But the injunction is in place at least until a court of appeals or the Supreme Court lifts it. And we don't know when that might happen. While the federal government has already filed a notice of appeal, typical appeals take, you know, more than a year. Now, it's possible the federal government will ask for some type of emergency relief or ask the courts to move more quickly on this case because it is so important and so destructive. But usually, you know, the typical appeal process takes a long time.

MARTIN: So this is a big question for a small amount of time to answer. But is there a concern that there is a line at which government flagging disinformation does cross the line into censorship? Is that a legitimate concern?

LITMAN: I think most people don't think that the government merely flagging disinformation crosses the line into censorship. Instead, the problem arises where the federal government is essentially bullying or coercing private companies to take down misinformation. But it's not really clear that that's what happened here. Instead, this court basically faults the federal government for having federal officials like Dr. Anthony Fauci appear on television to identify certain, you know, COVID treatments as not working.

MARTIN: So obviously, there's a whole lot more to talk about, so hopefully we'll be doing more of that. Leah Litman is a law professor at the University of Michigan and co-host of the podcast "Strict Scrutiny." Professor Litman, thank you for your time.

LITMAN: Thank you. Transcript provided by NPR, Copyright NPR.

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