The federal judge who slapped down the White House's social media interventions yesterday triggered a lot of consternation, and quite a few victory laps. It's not clear whether his ruling will be appealed, or whether it will ultimately hold up. But one thing is certain: Judge Terry Doughty just reminded everyone how little agreement there is on the line between protected speech and sanctionable misinformation, both in the U.S. and — in an era of global communications networks — worldwide. Doughty handed conservative free-speech advocates an Independence Day gift yesterday with a sharply worded ruling that limits government officials’ power to lobby social media companies to take down content. He issued an injunction that forbids some agencies and more than three dozen government officials — by name — from reaching out to platforms. The Trump appointee’s ruling found that the Biden administration's efforts to police online discussion of the coronavirus were likely unconstitutional, in line with Republican arguments that the government overreached in its clampdown on Covid-19 misinformation. Whether the ruling stands in its present form, it offers a reminder that broader questions about the laws and norms that will govern the future of online expression remain unsettled. “The constitutional lines here are very blurry," Jameel Jaffer, director of Columbia’s Knight First Amendment Institute, wrote in an email. (Jaffer acknowledged it was "at least possible" that the government overstepped its bounds, but suggested that the judge's order was too broad to stand as is.) How can national laws effectively police speech on global communications networks? And when national governments, individual users and social media platforms clash in cyberspace, whose rules will prevail? Even among its closest allies, the U.S. is an outlier in its commitment to the free flow of information. French President Emmanuel Macron, in private remarks yesterday to mayors that were reviewed by POLITICO, floated the idea of cutting off access to social media networks to curb riots in France. And despite yesterday’s ruling, the ubiquity and anarchy of the internet have already strained commitments to free expression within the U.S. as well, as leaders have increasingly come to view unfettered online discussion as dangerous. A decade ago, when social media fueled unrest in the Middle East, U.S. leaders largely applauded the democratic potential of unfettered speech, with Barack Obama pledging to support “open access to the Internet, and the right of journalists to be heard” in a May 2011 speech about the Arab Spring. But a commitment to absolute openness started to look different to many leaders — more like a threat to democracy — once social media networks became vectors of populist discontent inside the U.S. Mainstream Washington became more comfortable with clamping down on speech that seemed to endanger domestic stability or the national interest. In 2019, Richard Stengel, a former managing editor of Time magazine and undersecretary of state in the Obama administration, proposed a law to ban hate speech, writing that his diplomatic experience and the rise of social media had convinced him to favor a more limited interpretation of the First Amendment. Others began calling on the Biden administration to move more aggressively to police online information, even to appoint a “reality czar.” This establishment pivot was driven in part by national security concerns about foreign disinformation. Covid-19 added another log to that fire. As debates about the coronavirus raged, government officials tried to clamp down on what they considered dangerous online theories — eventually triggering the lawsuit behind Doughty's ruling yesterday. As mainstream thinkers began to get more comfortable with state oversight of online speech, this has put the U.S. in an awkward position vis-a-vis its chief global rival. Not so long ago, U.S. officials could freely hammer China’s state-backed censorship efforts. In 2009, the Obama administration condemned a plan by Beijing to require censorship software on all computers as an affront to the “internationally recognized right to freedom of expression.” In the years that followed, U.S. sometimes labeled Chinese internet censorship an impediment to business. But by the time of Covid-19, the Chinese model of government oversight started, in certain corners, to look more appealing. An Atlantic piece co-authored by Jack Goldsmith, a former assistant attorney general appointed by George W. Bush, acknowledged that America had moved closer to Beijing's model of trying to tame the unruly Web, with a provocative headline: "China was largely correct, and the U.S. was wrong." This wasn't lost on China, either: When social media platforms banned Trump during his waning days in office, Chinese state outlets pounced on the opportunity to paint the U.S. as an unfree society. While parliaments and (social media) posters continue to pursue this debate, it may be changing technology that ultimately settles it. After all, the First Amendment, which guarantees the freedom of “the press” and prohibits the establishment of a state religion, is partly a product of circumstances created by the printing press. That technology ensured there was no single source that Western Europeans looked to for ultimate truth, meaning there would be no peace if the government attempted to impose one. The proliferation of computers and the internet are creating a new backdrop for political reality — one that yet again makes information harder to control. In the U.S., a 30-year-old legal precedent granting speech protections to computer code used for encryption has already altered the balance of power between individual Americans and the government in cyberspace. Activists and researchers are experimenting with the use of blockchains — the distributed databases that power cryptocurrencies — to thwart censorship by storing copies of sensitive information in thousands of interconnected network nodes. And the sorts of fights over social media moderation that led to yesterday’s court ruling have also inspired computer programmers to create alternative, decentralized social media networks meant to render censorship impractical. The efforts of these computer-savvy activists raise the prospect that changing internet technology itself could render court judgments about the flow of online information moot someday soon. | 
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