Topline
The Supreme Court will hear oral arguments Monday in a case that will determine to what extent the federal government can contact and exert pressure on social media companies, after two GOP-led states accused the Biden administration of “censorship” by “coercing” social media platforms to moderate misinformation.
President Joe Biden delivers a statement from the Roosevelt Room at the White House on December 06, ... [+]
Key Facts
The court will hear arguments in Murthy v. Missouri, a case brought by Missouri, Louisiana and several individuals that challenges the Biden administration’s contacts with social media companies.
The states accuse the government of waging “a broad pressure campaign designed to coerce social media companies into suppressing speakers, viewpoints, and content disfavored by the government,” such as by asking them to remove misinformation about the election and Covid-19—which the states argue violates the First Amendment and unfairly suppresses conservative speech.
While the government is prohibited from expressly controlling speech on private platforms like social media, the contact at issue is more of a gray area known as “jawboning,” which the Knight First Amendment Institute defines as “informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation practices.”
The Biden administration has defended its actions and denied it was as coercive as the states claim, arguing to the Supreme Court in a filing that “so long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern—even if government officials state their views in strong terms, and even if private actors change their speech or conduct in response.”
Free-speech groups like the Knight First Amendment Institute and Electronic Frontier Foundation have urged justices to issue a balanced ruling clarifying when government contact is permissible, with the EFF arguing in a court brief that while “government co-option” of platforms’ content moderation is “a serious threat to freedom of speech … there are clearly times when it is permissible, appropriate, and even good public policy” for officials to “noncoercively inform, communicate with, and even attempt to persuade social media companies.”
Groups representing the tech industry said in a court brief they don’t favor either party in the case, but they want the court to institute a rule that prevents the government from using indirect means to unlawfully compel speech, and want to make sure tech companies aren’t held liable for the government’s actions.
What To Watch For
Justices will hear oral arguments in the case on Monday and then issue their opinion likely in a few months, sometime before the court’s term wraps up in late June.
What We Don’t Know
It remains unclear how the court will rule in the case, and what impact their decision could have. While right-wing groups opposing the Biden administration have warned that a ruling in the government’s favor could greenlight “censorship” on social media, supporters of the government in the case have also argued a ruling against the Biden administration could have harmful effects. Sen. Mark Warner, D-Va., said in a court brief that it’s necessary for the government to work with social media companies to a certain degree in order to combat “foreign malign influence” against the U.S., for instance, while leading medical groups including the American Medical Association defended the government’s “compelling interest” in opposing vaccine misinformation, given the harm such false information poses to public health.
Tangent
Murthy v. Missouri is one of several social media-related cases the court is considering this term. Justices heard oral arguments in February over so-called social media censorship laws in Texas and Florida, for instance, which restrict social media companies’ content moderation activities in order to combat what conservatives have alleged is a bias against them on mainstream platforms. (Research has shown such a bias does not exist.) The court also ruled Friday in two cases concerning local officials banning and removing comments by critics on social media, which their critics argued was unlawful given the officials’ government roles. Justices issued a unanimous ruling laying out a test for when public officials are acting on behalf of the government versus in a private capacity on social media, saying they’re acting on behalf of the state only when they “[possess]
actual authority to speak on the State’s behalf on a particular matter” and “[purport] to exercise that authority when speaking in the relevant social-media posts.”Key Background
Attorneys general in Missouri and Louisiana first sued the Biden administration in May 2022 over the government’s contacts with social media companies, part of the right’s broader criticism of social media companies and their purported anti-GOP tilt. The plaintiffs won in federal district court in July 2023, as a Trump-appointed judge issued an injunction restricting the Biden administration’s contacts with the social media platforms. A federal appeals court then narrowed that injunction in September, broadly ruling that the government can’t coerce social media platforms but finding the district court judge’s order was “overbroad” in how it restricted the government’s contacts. The Supreme Court agreed in October to take up the case and paused the lower courts’ injunction on the Biden administration’s social media contacts until justices issue a decision. The New York Times reported Sunday that the government has still been affected by the court’s ruling, however, noting officials at the Departments of State and Homeland Security have “suspended virtually all cooperation with the social media platforms” over disinformation posts that originate in the U.S.
Further Reading
