On Monday, the Supreme Court of the United States (SCOTUS) will decide whether or not the government disobeyed the constitutional right to free speech when they pressured social media platforms to take down content they labeled as misinformation. The case stems primarily from the Biden administration’s efforts to remove misinformation regarding the COVID-19 pandemic and the US 2020 presidential election, according to a recent report.
SCOTUS is essentially tasked with deciding if the First Amendment has limits regarding what is written online and on social media platforms.
"The key free speech issue is how far can the government go in verbally arm-twisting private speech intermediaries to remove speech before that constitutes a First Amendment violation or state action," said Clay Calvert, a law professor at the University of Florida.
SCOTUS will be looking at two cases regarding free speech rights. In Murthy v. Missouri, the social media case, a suit was brought by five social media users and the Republican attorney generals of Missouri and Louisiana.
"By silencing speakers and entire viewpoints across social-media platforms, defendants systematically injure plaintiffs' ability to participate in free online discourse," state officials from Louisiana and Missouri wrote.
In their complaint, the plaintiffs claim that they were censored on social media regarding several topics including: a story about Hunter Biden’s laptop before the 2020 election; the origins of the COVID-19 pandemic; the efficiency of measures to mitigate the spread of COVID-19; and the integrity of the US 2020 election.
A federal district judge in Louisiana found that seven groups of Biden administration officials violated the First Amendment because they “coerced” or “significantly encouraged” changing social media platforms’ content-moderation decisions.
The Biden administration argued that the social media users and states lack legal standing in their case, but said officials must be free “to inform, to persuade, and to criticize”, according to filings.
"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," Solicitor General Elizabeth Prelogar, who represents the government before SCOTUS, said.
SCOTUS will also hear an appeal from the National Rifle Association (NRA) over comments made by Maria Vullo, a former New York State official, after she urged insurance companies and banks to abandon their relationship with gun-promoting groups after a school shooting in Parkland, Florida. The group says that Vullo, who served as the former New York State Department of Financial Services superintendent, violated the group’s First Amendment rights.
Vullo reportedly sent out “guidance letters” to businesses and in a press statement called on banks and insurance companies operating in New York to consider the “reputational risks” in doing business with the NRA or other gun groups.
"In both cases, the government doesn't actually have the power to regulate speech or to decide whether the NRA can access banking institutions or not," said Will Duffield, a policy analyst at the libertarian Cato Institute, adding that "the government is seemingly gaining, gathering, usurping new powers by leaning on these intermediaries in order to do things that it isn't authorized to do itself."
David Greene, the civil liberties director at the Electronic Frontier Foundation, said US officials will not lose their ability to combat misinformation or disinformation, but adds that they do have a responsibility to not appear as coercive or forceful.
"There are two main issues, and that is what do courts look at to determine whether and at what point a government crosses the line from voicing its opinion about how a social media platform should treat a specific post to unconstitutionally coercing the censorship, the negative moderation of that post," he said.
"There's no disagreement that there is a point at which it becomes unconstitutional, but what the parties disagree on is what is that line and what is the appropriate analysis for setting that line, what factors to consider?
On Friday, SCOTUS decided that government officials can sometimes be sued under the Constitution’s First Amendment for blocking critics on social media.