The Supreme Court will hear oral arguments Monday in a case that could determine how far the federal government can go to convince social media sites to curtail or remove misinformation about health, safety and other issues of public concern.
The Justice Department has asked the justices to overturn a ruling last year from the U.S. Court of Appeals for the 5th Circuit that would sharply limit the government’s ability to communicate with internet giants like Meta, Google and X, the company formerly known as Twitter.
Agencies communicated with those companies during the Trump and Biden administrations about posts related to the COVID-19 pandemic; the laptop of Hunter Biden, President Joe Biden’s son; and other issues.
The states of Missouri and Louisiana, picking up on long-running conservative concerns over online censorship, filed a lawsuit along with a handful of social media users to challenge what they described as a pressure campaign to suppress views the government disfavored.
They contend that violated their free speech rights because the government coerced social media companies to remove content even if it complied with the companies’ policies.
The 5th Circuit issued an injunction that, if allowed to go into effect, would block government agencies from engaging in “coercion” or “significant encouragement” of social media platforms to take action against protected speech of users.
In a brief at the Supreme Court, the Justice Department told the Supreme Court that ruling would effectively make a judge “the superintendent of the Executive Branch’s communications with and about the platforms.”
“The court imposed unprecedented limits on the ability of the President’s closest aides to speak about matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on CDC’s ability to relay public-health information,” the brief said.
Legal experts say the case also could reverberate beyond efforts to contain misinformation online, since the Supreme Court could decide dicey issues about when government communication becomes coercion that uses private actors to censor private speech — known as “jawboning.”
Derek Bambauer, a law professor at University of Florida Law School, said the government has its own right to speak, and deciding when government speech crosses the line can become difficult when “there’s some pressure lurking in the background” because a powerful government agency comes calling.
“At what point can the government engage in what I think most people regard as kind of unproblematic encouragement or criticism of platforms?” Bambauer said. “And at what point is it basically sufficiently coercive that we should think of it no longer as Twitter’s decision or Meta’s decision but the government’s decision?”
Safety risk
The Biden administration has argued that muzzling government officials could cause real harm to the government’s ability to advocate for safety online and in the real world.
“Government officials are and must be free to inform, to persuade, and to criticize. Such government speech often prompts private entities to act, but that does not transform those entities into state actors. Were it otherwise, every successful public-awareness campaign or use of the bully pulpit would create state action,” a government brief said.
The Biden administration characterized social media companies as powerful entities capable of defending themselves against criticism from government officials. The brief also said social media companies frequently rely on government input to identify terrorist content, malign foreign influence and other posts that violate the law or companies’ own policies.
Restricting the government’s ability to communicate with social media companies could also hurt national security, according to a brief from Sen. Mark Warner, D-Va., the chairman of the Senate Intelligence Committee.
Warner said intelligence agencies have watched as countries such as Iran, China, Cuba and Russia used social media to warp discourse in America, particularly targeting elections. Countering those efforts requires government agencies to share what they know about foreign influence efforts, which the court case has endangered.
“Any injunction here, no matter how narrow, poses a great security risk to the United States by restricting the ability of the government and social media companies to counter foreign malign influence together,” Warner wrote.
Siding with the administration could have its own consequences, according to Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University Law School.
Speaking at an NYU Law School event last week, Jaffer said that though the issues in the case “are right out of the culture wars” of conservatives, the issues involved could endanger free speech online more broadly.
“Pick your category of speech, change the actors, and try to try to see this in a principled way, even though the facts as presented to the court really are, you know, straight out of the culture wars,” Jaffer said.
Censorship concerns
The states and social media users have argued that White House and health officials regularly encouraged platforms to deprioritize or entirely remove posts critical of vaccination or other public health efforts.
The fact that social media companies, rather than the government, removed the posts should not allow the Biden administration to get off scot-free, the challengers argued in a brief in the case.
“The government cannot engage in wholesale coercion to suppress speech and then disclaim responsibility when its plan succeeds,” the brief said.
The case has become a flashpoint in the ongoing political debate over censorship online, with Republicans in Congress pointing to it as an example of anti-conservative bias among social media companies.
House Judiciary Chairman Rep. Jim Jordan, R-Ohio, and 44 other Republicans in Congress signed onto a brief in the case arguing to uphold the injunction, claiming the Biden administration has suppressed conservative speech online.
“On issue after issue, the Biden Administration has distorted the free marketplace of ideas promised by the First Amendment, bringing the weight of federal authority to bear on any speech it dislikes — including memes and jokes,” the lawmaker brief said.
Despite long-running concerns over speech online, Bambauer said the Supreme Court could decide to duck the issue entirely. He points to a section of the Biden administration brief where the government argued that the states and individuals do not have a right to sue at all.
However, he noted that several conservatives justices in this case already have expressed concerns about the power of social media companies over public dialogue in the modern era and may be anxious to address the issues.
Justices Samuel A. Alito Jr., Neil M. Gorsuch and Clarence Thomas dissented from the high court’s initial order last year that paused the 5th Circuit’s injunction, and Alito wrote a five-page dissent. He criticized the majority for being too lenient on the Biden administration and potentially allowing censorship to persist.
“At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate,” Alito wrote.
The spelling of Derek Bambauer was corrected in this report.
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