Social Media vs Supreme Court: Is Our Right Of Freedom Of Expression At Risk Of Being Taken Away During The 2024 Election?
Murthy v Missouri
Whether the federal government’s involvement in moderating content at social media companies during the Covid-19 pandemic and the 2020 election cycle violate the First Amendment’s free speech clause?
Background
Murthy v Missouri is a case that was heard by the Supreme Court about whether the federal government can be involved in social media content moderation decisions.
The history behind the case starts in. Missouri, Louisiana, three doctors, a news platform, and a health care activist (collectively, “Missouri”) filed suit against federal government agencies and officials (collectively, “Murthy”) claiming that the federal government violated the Free Speech Clause by coercing social media companies to censor user content that the federal government deemed in misinformation.
The District Court and the Fifth Circuit Court of Appeals found that the government had unconstitutionally censored the parties represented by Missouri and thus violated the First Amendment.
In October 2023, the Supreme Court agreed to hear Murthy v. Missouri. The U.S. Supreme Court heard oral arguments on March 18.
Key Arguments
Missouri
Lawyers for Missouri argued that the Biden administration and agency officials violated the First Amendment when they asked social media companies to remove numerous posts for having controversial viewpoints over Covid-19 which the government had put pressure on to remove from the general public. Missouri argued that the Biden administration’s involvement in trying to suppress COVID-19 misinformation, especially about vaccines, and the origins of the pandemic crossed the line from being public health education to being censorship.
The Murthy V Missouri Supreme Court case also explained that the 2020 election information was also suppressed by coercive action by the government compelling Big Tech companies into censoring election information that they disagree with.
Murthy
Lawyers for Murthy argued that it did not violate the First Amendment because it did not coerce or threaten the social media companies into moderating content. The federal government claims the removal of content was a joint and voluntary effort between social media and the government to fight against misinformation and improve public health. Murthy asserted that Americans have no First Amendment right to post content on private platforms that the platforms would prefer not to host.
Pushback from Supreme Court Justices
Both Murthy and Missouri fielded challenging questions from the Supreme Court Justices.
Chief Justice Roberts and Justice Kagan asked both sides to explain how they define “coercion” and how they got to their respective definitions. Both parties relied upon legal precedent. This will likely be a key fact the court decision turns on.
Murthy
Supreme Court Justice Clarence Thomas asked Murthy to explain when government activity is coercive. Murthy argued that the correspondence between the federal government and social media platforms only rose to the threshold of encouragement rather than coercion.
Justice Thomas claimed that the government couldn’t get away with the same actions if it pertained to print media instead of social media. Murthy pushed back asserting that COVID-19 was a special situation, and that context is relevant.
Justice Thomas also questioned whether the government is allowed to pursue the suppression of protected speech. Murthy again argued that so long as the actions are persuasive and not coercive, then the government can advocate for the suppression of protected speech.
Missouri
Justice Jackson asserted that the government could censor speech in some cases and that not every case affecting speech is a First Amendment violation. Missouri agreed that in some extreme cases, such as those dealing with matters of national security, strict scrutiny should apply. However, Missouri also argued that the rule should be if the government has set out to abridge speech.
The Justices argued that there is too much discussion and encouragement by the government and private actors that occur in the normal course of day-to-day activity that will become illegal if the Supreme Court rules on behalf of Missouri. Missouri asserted that the government could respond to false or harmful speech by using its positive counter‐speech.
Justice Jackson then provided a hypothetical of a dangerous viral challenge that results in teens getting harmed and speculated whether the government could require social media platforms to take down the related content. Missouri asserted that while the government can condemn such activities as harmful, it cannot require that social media platforms remove the content. Again, Missouri reiterated that the government could use its speech to recognize and underscore a problem but not to encourage the removal of protected speech because while it may be good policy for the government to stop harmful speech, giving the government the power to target categories of speech to be suppressed is excessively problematic.
Conclusion
The Supreme Court’s decision will ultimately guide what communications by the federal government to social media platforms regarding content are okay, and what communications go too far and ultimately infringe on the First Amendment.
The verdict will likely turn on (i) what definition of “coercion” the Court settles on, (ii) whether Missouri can convince the Supreme Court Justices that positive counter-speech is strong enough to combat unwanted speech to the point the unwanted speech does not need to be censored and (iii) whether Murthy can convince the Supreme Court Justices that coercion is ok in certain circumstances.
The Murthy V Missouri case will affect millions of Americans due to the precedent it will set regarding the First Amendment. Given that the Supreme Court Justices are going to give their final opinion on Murthy v Missouri on June 18th, Americans are encouraged to continue to keep a close eye on this important Supreme Court Case.
