The White House’s efforts to combat disinformation are being tested by the Supreme Court
The Supreme Court will hear arguments Monday on whether the Biden administration violated the First Amendment in combating what it said was misinformation on social media platforms.
It is the latest in an extraordinary series of cases in which this term requires judges to assess the meaning of freedom of expression in the Internet age.
The case emerged amid a barrage of communications from government officials urging platforms to remove posts on topics including the coronavirus vaccines, claims of election fraud and Hunter Biden’s laptop. Last year, a federal appeals court was brought in severely limits such interactions.
Alex Abdo, an attorney at Columbia University’s Knight First Amendment Institute, said the Supreme Court’s review of that decision must take into account two competing values, both essential to democracy.
“This is a hugely important case that will determine the government’s power to pressure social media platforms to suppress speech,” he said. “Our hope is that the Supreme Court will clarify the constitutional boundary between coercion and persuasion. The government does not have the power to threaten platforms to censor protected speech, but it must have the ability to participate in public debate so that it can govern effectively and inform the public of its views.”
The court has repeatedly grappled this term with fundamental questions about the scope of the government’s authority over major tech platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that restrict major social media companies from making editorial judgments about which posts to allow.
These four cases, along with Monday’s, will collectively rebalance the power of government and powerful technology platforms in the area of freedom of expression.
A second argument on Monday raises a related constitutional question about government power and freedom of speech, but not in the context of social media sites. At issue is whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.
Monday’s first case, Murthy v. Missouri, No. 23-411, was brought by the attorneys general of Missouri and Louisiana, both Republicans, along with individuals who said their speech had been censored.
They did not dispute that the platforms had the right to make independent decisions about what to post on their sites. But they said the conduct of government officials in urging them to pass on what they say is disinformation amounts to censorship that violates the First Amendment.
A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed, saying that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention and the FBI were likely to find constitutional limits had exceeded in their attempt to convince platforms to remove posts about what they had flagged as disinformation.
The panel, in an unsigned opinion, said the officials had become excessively entangled with the platforms or used threats to push them into action. The panel issued an order prohibiting many officials from compelling or significantly encouraging social media companies to remove content protected by the First Amendment.
Two members of the panel, judges Edith B. Clement And Jennifer W. Elrod, were appointed by President George W. Bush. The third, Judge Don R. Willettwas appointed by President Donald J. Trump.
The Biden administration filed an emergency motion in September asking the Supreme Court to suspend the order. She said the government had the right to express its views and try to convince others to take action.
“A central dimension of presidential power is using the pulpit of the office to persuade Americans – and American businesses – to act in ways that the president believes would advance the public interest,” wrote Attorney General Elizabeth B. Prelogar.
In answerattorneys for the states wrote that the government had violated the First Amendment. “The bully pulpit,” they wrote, “is not a bully pulpit.”
The court granted the administration’s request, stayed the Fifth Circuit’s ruling and agreed to hear the case.
Three judges disagreed. “Government censorship of private speech is inconsistent with our democratic form of government, and that is why today’s decision is deeply troubling,” wrote Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch.
Justice Alito added: “At this moment in our country’s history, what the court has done will, I fear, be seen by some as giving the administration a green light to use heavy-handed tactics to suppress the presentation of views on to distort the situation. medium that increasingly dominates the dissemination of news. That is a great pity.”
In a letter from the Supreme Courtthe government said it must have the freedom to speak forcefully in pursuing its policy agenda. “As long as the government seeks to inform and persuade rather than coerce, its speech does not raise First Amendment concerns—even when government officials state their positions in strong terms, and even when private actors change their speech or behavior in response change,” the government said. Briefly.
There was no evidence, the letter added, that the government had coerced the platforms. “Although the Fifth Circuit stated that White House officials threatened the platforms with legal reforms,” the letter said, “the only statements it identified were general responses to press inquiries, separate from any specific request for content moderation.”
Lawyers for Missouri and Louisiana said the government routinely crossed the line from general persuasion to specific demands.
“The government can speak freely on any topic it chooses,” the letter said, “but it cannot pressure and coerce private companies to censor everyday Americans.”