Biden Admin No Longer Talking to Facebook About Removing ‘Foreign Election Interference’ Posts as Censorship Lawsuit Proceeds

President Joe Biden speaks to reporters in Washington on March 31, 2023. Saul Loeb/AFP via Getty Images

The Biden administration is no longer warning Facebook parent Meta about “foreign election interference” campaigns, according to the company’s latest threat report, which comes amid a legal battle seeking to limit federal government communications with big tech platforms due to censorship concerns.

Federal agencies are no longer providing notifications to Meta about global influence campaigns, the tech firm confirmed in its latest quarterly Adversarial Threat Report, released in November.

“While information exchange continues with experts across our industry and civil society, threat sharing by the federal government in the US related to foreign election interference has been paused since July,” Meta said in the report.

The revelation that the Biden administration stopped communicating with Meta about “foreign election interference” comes amid a lawsuit brought by the attorneys general of Louisiana and Missouri, who accused the Biden administration of violating Americans’ free speech by pressuring big tech companies to censor posts.

Background

The start of the pause in the Biden administration’s communications with the social media giant coincides with a landmark ruling (pdf) on July 4 by Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana, which prohibited various federal agencies from contacting social media companies about censoring free speech on their platforms.

That ruling came in a lawsuit that Missouri Attorney General Andrew Bailey said had been filed in order “to halt the biggest violation of the First Amendment in our nation’s history” by federal agencies in a censorship-by-proxy scheme that involved the Biden administration coercing companies to take down disfavored posts.

However, Judge Doughty’s ruling was later narrowed by the 5th Circuit Court of Appeals, which also said that Biden administration officials likely violated the First Amendment by pressuring social media companies to crack down on content.

The 5th Circuit vacated much of Judge Doughty’s July 4 ruling, calling it too broad and saying in a Sept. 8 decision (pdf) that mere encouragement to take down content doesn’t always run afoul of constitutional protections.

“As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that,“ the appeals court ruling states. ”Moreover, many of the provisions are duplicative of each other and thus unnecessary”

The appeals court’s modified injunction prohibited Biden administration agencies from taking action to “coerce” or “significantly encourage” social media companies to take down or otherwise suppress posts although it narrowed the scope to a smaller number of entities, namely to the White House, the surgeon general, the Centers for Disease Control and Prevention (CDC), and the FBI.

Judge Doughty’s original order also included the National Institute of Allergy and Infectious Diseases (NIAID), the Cybersecurity and Infrastructure Security Agency (CISA), and the U.S. State Department, which the appeals court’s decision excluded.

SCOTUS Involved

However, the Department of Justice appealed the decision to the U.S. Supreme Court, which on Sept. 14 put Judge Doughty’s ruling (as modified by the 5th Circuit) on hold, freezing its effect until the high court decides the case on its merits.

Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented in the decision to pause the order.

“At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news,” Justice Alito wrote in the dissenting opinion. “That is most unfortunate.”

The decision by the Supreme Court to take up the case in its next term sets up a legal battle with major implications for online speech.

Meanwhile, Meta said in its threat report that the sharing of information by federal agencies and others has been “critical to identifying and disrupting foreign interference early, ahead of elections,” while appearing to lament the fact that the government was no longer flagging content for action.

“While we’ve continued to strengthen our internal capacity to detect and enforce against malicious activity since 2017, external insights from counterparts in government, as well as researchers and investigative journalists, can be particularly important in detecting and disrupting threat activity early in its planning taking place off-platform,” Meta wrote.

“We believe it’s important that we continue to build on the progress the defender community has made since 2016, and make sure we work together to keep our defenses against foreign interference strong,” Meta added.

Meanwhile, the Missouri attorney general who has been fighting the case in court, said in August that the Biden administration’s “vast censorship enterprise” that targets Americans’ free speech should be halted permanently.