Supreme Court Confronts Claim White House Bullied Social Giants

The US Supreme Court will again try to draw a delicate line in balancing competing online speech rights, this time examining whether the Biden administration went too far in attempting to combat social media disinformation.

In Murthy v. Missouri to be argued Monday, social media users and a pair of GOP-led states say the White House, Centers for Disease Control and Prevention (CDC), and other agencies essentially coerced sites like Meta Platforms Inc.'s Facebook and the former Twitter to take down what they dubbed misinformation about Covid and allegations that the 2020 election was stolen.

It’s the latest case this term weighing the limits on government interaction with sites facing unprecedented pressure from conservatives who say they discriminate against right-leaning commenters. It also comes amid a contentious presidential election campaign that’s likely to bring more scrutiny.

“The 2024 US elections are rapidly approaching, and with them come increased risk for disinformation, unfounded accusations of election interference, and other disruptive behavior that will be designed to undermine our electoral process and democracy itself,” said Kate Ruane of the Center for Democracy and Technology.

“Social media companies are poised to play an outsized role in both the propagation and the mitigation of those risks,” said Ruane, who filed a friend-of-the-court brief in the case supporting neither side.

High Stakes

The justices are hearing five cases this term on the limits of government interaction with social media sites.

In the court’s only ruling in one of those cases so far, , the justices March 15 said government officials can sometimes violate the First Amendment when they block constituents from their content in both Lindke v. Freed and O’Connor-Ratcliff v. Garnier.

In February, they heard arguments on whether states can legislate to prohibit platforms from censoring or deplatforming certain users in Moody v. NetChoice and NetChoice v. Paxton.

And in Murthy, the court considers how far the government can go in using its power to encourage sites to remove content it deems harmful to public health and democracy.

The cases all involve a tangle of First Amendment rights. They include the government’s right to speak on matters of public importance, social media users’ right to speak and receive accurate information, and the platforms’ right to moderate content on their sites, said University of Chicago Law School professor Genevieve Lakier.

And it’s no coincidence that these cases converge at the court at the same time, said Thomas Berry, a research fellow at the libertarian Cato Institute.

“The combination of Covid and Jan. 6 and the reaction to that was really a watershed moment for social media,” Thomas said. “We’re now seeing the legal consequences of the resulting speech conflicts and of people realizing that social media is now indisputable the dominant source of information.”

“The stakes are really high on all sides,” Thomas said.

He and Cato also filed an amicus brief supporting neither side.

Balancing Act

In Murthy, as in the other cases, the court will need to find a sort of sweet spot.

Of course government officials should be able to speak to the American people about matters of importance, Lakier said. At the same time, both users and platforms are harmed when the government forces the sites to remove content they don’t actually want to remove, she said.

In 1963, the court recognized that “informal systems of censorship can potentially violate the First Amendment,” Ruane said. In that case, Bantam Books v. Sullivan, the justices found that Rhode Island officials ran afoul of the Constitution when they pressured distributors to stop circulating books deemed offensive for minors.

Here, the US Court of Appeals for the Fifth Circuit found the Biden administration, both publicly and privately, asked platforms to remove specific content, pressed them to change their moderation policies, and threatened legal consequences if they didn’t comply. “And, it worked—that ‘unrelenting pressure’ forced the platforms to act and take down users’ content,” the Fifth Circuit said in ruling against the administration.

The government emphasizes that its entitled to share information, urge action, and participate in the debate over issues of major concern. “Indeed, it is not easy to imagine how government could function if it lacked this freedom,” it said in its brief.

But “this balance between giving the government space to persuade while preventing the government from coercing platforms, turns out to be a really hard one to draw,” said Alex Abdo, the legal director at the Knight First Amendment Institute.

That’s because persuasion and coercion act on a spectrum, said Abdo, whose organization also filed a brief in support of neither party.

Lower courts since Bantam Books have identified many different factors that are helpful in sorting persuasion from coercion, Abdo said. Those include the tone of the government’s communications, the regulatory authority of the official communicating with the sites, and whether the communications were done in public or privately.

What’s important is for the court to provide clarity, Ruane said.

“We’ll be looking for the court to provide not just the list of things that a court should consider” when deciding whether government officials went too far, she said. “But also to shine a light toward things the government can more broadly do to alleviate concerns around its communications with social media platforms.”

Whatever the outcome in Murthy, Abdo said the court’s social media cases this term, taken together, “might set the tone for digital public discourse over the next generation.”

The case is Murthy v. Missouri, U.S., No. 23-411, argued 3/18/24.