David Inserra
In the wake of the Supreme Court’s decision in Murthy v. Missouri, the Department of Justice’s (DOJ) Inspector General (IG) recently released its investigation into how the DOJ communicates with social media companies. The Murthy decision determined that to have legal standing to sue, potential victims of censorship need to prove that a specific government demand was backed by a clear coercive threat that led to the suppression of their speech.
As I wrote at the time, this means that some sort of transparency regime into government demands of social media companies is even more critical. The only way to discover clear evidence of censorship is for victims to be aware of government actions taken against their speech. Such knowledge is hard to come by, however, as most social media companies don’t tell users if the government is targeting their speech. And the government isn’t eager to let everyone know about its censorial actions.
Enter the new IG report. The IG found that in its efforts to counter foreign malign influence, “neither DOJ nor the FBI had a specific policy or guidance applicable to information sharing with social media companies until February 2024.” The lack of such guidance “created potential risks for the FBI and the Department arising from the fact that social media is often used as a forum for protected political speech in connection with U.S. elections.”
So the DOJ responded by developing a standard operation procedure for communicating with social media companies about such foreign threats. When asked by the IG to make this new procedure available to the public, the DOJ refused. The report states, “Additionally, in view of its sensitivity markings, the FBI informed the OIG that the SOP is not suitable for public release. Because DOJ’s credibility and reputation are potentially impaired when its activities are not well understood by the public, we recommend that the Department identify a way that it can inform the public about the procedures it has put into place to transmit foreign malign influence threat information to social media companies in a manner that is protective of First Amendment rights.”
Talk about an understatement. Neither the DOJ nor the FBI will tell Americans what its procedures are for protecting their First Amendment rights—yes, that might impair the DOJ’s credibility and reputation on this issue. In light of a significant Supreme Court case on this topic, government and experts getting truth vs. misinformation wrong, and falling and politicized trust in the FBI, government agencies like the DOJ have a lot of work to do to rebuild the public’s trust. But their response so far seems to be, “just trust us.”
If the DOJ won’t be transparent about its procedures, then, of course, it will resist even deeper transparency into the actual content of its communications. And this resistance is certainly present across the government.
That’s why Congress needs to step in and require government actors to report their requests and demands of social media companies. The Office of Management and Budget would collect these requests and then publish them for the public to see, subject to existing Freedom of Information Act restrictions for things like privacy and national security. Social media companies would also inform the people who are targeted by the government.
While true national security threats that the FBI wants to refer to social media companies will be kept secret, those targeted by the government should be allowed to challenge this in court. This prevents the government from abusing “security” as a way to keep its censorial demands secret.
The DOJ inspector general was right to point out that the lack of transparency and trust in how the government makes demands of social media companies is not healthy. Rather than trusting the government to abide by the First Amendment, policymakers should require transparency that brings censorship into the sunlight.
