Professor, Student Team Up To Look at Weakened Government Cooperation With Social Media Companies

Despite recent litigation casting doubt on whether certain interactions between the government and social media companies are constitutional, a new paper by Professor Danielle Citron and third-year student Jeff Stautberg of the University of Virginia School of Law argues that partnership is more important than ever.

The pair’s paper, “Public-Private Partnerships After Murthy v. Missouri,” is forthcoming in the Indiana Law Journal.

Murthy v. Missouri asked whether the government pressured social media companies to take down certain types of speech, such as election and COVID-19 misinformation. In June, the Supreme Court decided that the two states and five individuals who used social media services and sued executive branch officials and agencies — alleging the government pressured platforms to censor their speech in violation of the First Amendment — lacked standing to initiate legal action.

“Jeff and I worried about the good and bad lessons from the litigation’s decisions,” Citron said. On the one hand, a “regrettable” takeaway would be that two-way information sharing about national security concerns should be avoided, which would “imperil content moderation and our democracy as a whole.” On the other hand, Citron explained, a potential upside is that public-private communications would be subject to enhanced transparency, accountability and respect for intimate privacy.

While the court did not rule on whether the government’s actions were unconstitutional, the decision has raised questions about the government’s role in influencing social media content.

In their paper, Citron and Stautberg argue that the collaboration between government and social media companies is crucial for protecting election integrity. Unfortunately, that cooperation has diminished due to the Murthy litigation, which has also hindered law enforcement’s work with the tech industry.

This lack of coordination harms voters, especially vulnerable communities, the pair argue, by allowing election misinformation to spread. Effective content moderation and rapid responses to election-related issues require a joint effort from both public and private sectors. To ensure just elections, the authors say, it is essential to rebuild this collaboration and secure transparency and accountability for those interactions while also respecting individuals’ privacy.

Citron is the Jefferson Scholars Foundation Schenck Distinguished Professor in Law and directs the LawTech Center.

She decided to pursue research with Stautberg after he became her “right hand” as a research assistant.

“Jeff’s enthusiasm and seriousness of purpose were apparent right away,” Citron said. “I trust him implicitly.”

Stautberg, who serves as the managing editor of the Virginia Law Review and on the editorial board of the Virginia Journal of Law & Technology, said he has benefited from engaging in Citron’s research.

“Building working relationships with your professors can be incredibly rewarding, and it’s also interesting, from an academic standpoint, to really dive into the work of a professor that you find compelling,” he said.

Stautberg is a Ritter Scholar, LawTech Fellow and Community Fellow. He previously served as president of the Law, Innovation, Security & Technology (LIST) Society.

The two met mere weeks into Stautberg’s 1L year, after he shared with Citron his interest in privacy, law and technology, and background working in consulting and data privacy.

“I asked him to [be a research assistant] because it’s so mutually beneficial. For students, if you do a great job, you have an advocate for life,” Citron said.

Murthy interested the pair because it aligned with their individual interests and related to policies that Citron had long been keeping an eye on.

She has worked closely with social media companies over the last 15 years, advising them on their speech policies and practices, with a particular focus on cyber harassment, stalking, threats and intimate privacy violations. In 2017, the European Union began placing pressure on American media companies to remove hate speech and extremist content, which resulted in a memorandum of understanding in which five dominant social media companies pledged to remove such content within 24 hours.

“When Europe ratcheted up speech restrictions, social media companies adopted those restrictions in their terms of service, which they apply globally,” Citron said. “Tech companies chose to adopt the EU approach for their services across the world because it would be cheaper and easier to have one approach. That got me interested in the relationship between government and companies, and how dynamics outside the United States could lead to creeping censorship and compelled conformity in the United States.”

Just as Europe was pressuring social media platforms to remove hate speech, U.S. politicians claimed that certain companies were censoring them, sometimes, allegedly, as a result of government pressure. The issue became more prominent when linked to COVID-19 misinformation and election administration conflicts.

What really interested Citron and Stautberg in Murthy was the allegation that the Biden administration was forcing some social media companies to take down speech that did not violate their terms of service and so could and should have been left online.

“The litigation had very few facts supporting it, but they were disturbing allegations,” Citron explained. “The District Court basically enacted a gag order, telling some government agencies they couldn’t talk to companies. When it comes to national security and foreign malign influence campaigns, it’s dangerous that the government can’t talk to companies about those activities.”

Social media companies have long asked for the government to share that information so that they can protect against abuses that they themselves prohibit, she said, such as inauthentic coordinated foreign malign campaigns.

In the paper, they note that the government and social media companies sometimes share information for national security purposes, but the government must be careful not to engage in “collateral censorship.”

Collateral censorship, a concept coined by Professor Michael Myerson of the University of Baltimore School of Law, refers to the dynamic of the government pressuring parties to censor speech that the government cannot directly prohibit. In this case, the collateral censorship relates to government pressure on social media companies to remove speech that the government cannot directly prohibit, like hate speech or lies, that do not cause cognizable harm. The plaintiffs in Murthy argued, for example, that the government flagging certain posts on social media as misinformation amounted to pressuring the platforms to censor social media users’ speech.

Recent litigation, including Murthy, has brought this issue to light. Citron and Stautberg argue that the Murthy litigation has surfaced the importance of transparency and accountability in government communications with the private sector, but has also disrupted necessary information-sharing between the two — especially in the context of the upcoming presidential election.

“The outlook is a bit bleak, because social media companies’ trust and safety teams have been massively gutted in recent years. This can hinder the companies’ ability to effectively address misinformation,” Stautberg said.

In their paper, the authors argue that Murthy has made it more difficult to ensure election resiliency. Government agencies should share information with social media companies, and vice versa, because a cooperative working environment that does not sacrifice free speech values is possible and critical to maintain the nation’s democracy.

“We cannot underestimate the significance of social media platforms playing a role in enabling illegality and national security threats,” Citron said. “Violence could be afoot, and we need to make sure there is a conversation happening about that potential.”