The First Amendment protects ideas that government agencies and experts consider misleading, false or even dangerous. That basic constitutional principle came under threat in the last decade as federal officials pressured social media companies to censor “misinformation.”
Now the Trump administration has entered into a binding legal settlement decisively repudiating that meddling. On Wednesday, a federal judge signed off on the deal. Whether the government will abide by the spirit of the settlement is a different story, but it will help to have it on the books.
Missouri, Louisiana and several private individuals sued the Biden administration in 2022 for what they said was government pressure on social media companies to suppress their speech, primarily about the coronavirus pandemic, on the grounds that it was false or misleading. The plaintiffs argued that because the First Amendment bars the federal government from censoring speech directly based on its content, it also bars the government from pressuring private companies such as Facebook to do the same.
The lower courts largely ruled for the plaintiffs, but the Supreme Court in 2024 dismissed the case on a 6-3 vote for a lack of standing without addressing the First Amendment question. Two years later, the plaintiffs and the Trump Justice Department have negotiated a consent decree, or binding settlement, that is notable for its forceful affirmation of First Amendment principles.
Both sides “agree that government, politicians, media, academics, or anyone else applying labels such as ‘misinformation,’ ‘disinformation,’ or ‘malinformation’ to speech does not render it constitutionally unprotected,” the settlement says.
That bears repeating: Outside of narrow exceptions such as libel and threats, the government cannot punish people for speech about public affairs. “Misinformation” is a bureaucratic label popularized in the 2010s. It has no legal meaning.
The consent decree emphasizes that regulatory threats can abridge the First Amendment. It says “the Government cannot take actions, formal or informal, directly or indirectly — except as authorized by law — to threaten Social-Media Companies with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction) unless they remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.”
The unfortunate catch is that the settlement only applies to the specific plaintiffs in this particular case. In other words, only the people who initially sued the Biden administration, and public officials from Louisiana and Missouri, will enjoy the court-ordered protections from government censorship. It’s unlikely the current administration would target right-leaning individuals or states, but the consent decree will apply for 10 years.
The settlement also applies only to government pressure on five companies: Facebook, Instagram, X (formerly Twitter), Linkedln, and YouTube. That means, for example, Federal Communications Commission Chairman Brendan Carr’s efforts to bully broadcasters to toe the administration’s political line will be unaffected.
So long as it has the regulatory power to do so, the federal government will keep up the political coercion of private business. But this settlement sets an example that future litigants can throw back in the government’s face when there are future rounds of bullying that infringe on constitutional rights.
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