patrick.net

If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this Court in years.
We are obligated to tackle that free speech issue. The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.
That is regrettable.
What the officials did in this case was subtle, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision will get the message: If a coercive campaign is carried out with enough sophistication, it may get by.
That is not a message this Court should send. ...

What these events show is that top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not even claim to be literally false, but nevertheless wanted obscured. And Facebook’s reactions to these efforts were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions.
Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. They pleaded to know how they could “get back to a good place” with the White House. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser.
The picture is clear.