Supreme Court to hear online speech case with major 2024 implications

The Supreme Court will attempt Monday to resolve a three-way crash involving free-speech rights on huge social media platforms like Facebook, YouTube and X.

The battle pits conservatives against the Biden administration, with the rights of tech giants to police their own platforms caught in the middle — and the outcome is likely to have repercussions at all levels of government where officials interact with those companies.

How the justices settle the fight could have a profound impact on the 2024 election, public health, national security — and the degree of freedom Americans have to express themselves online.

The result could also shape the future of the bully pulpit: the ability of presidents to use their powerful public megaphone in the digital age.

Samir Jain of the digital rights nonprofit Center for Democracy and Technology said in an interview that the high court needs to strike a careful balance when it comes to the government’s interactions with platforms.

Jain urged the court to make clear that “there are legitimate reasons for the government to communicate with social media companies, but it needs to do so in a way that’s not coercive or improperly pressuring” those companies. He added that the court should allow for certain public health and national-security information sharing.

“The answer is not ‘no more communication from the government to social media companies,’” Jain said.

The suit the justices will take up Monday is led by GOP state attorneys general from Missouri and Louisiana, spearheading a group of plaintiffs claiming top Biden officials, including the surgeon general and Centers for Disease Control and Prevention, pressured social media platforms to suppress or delete posts — mainly from conservatives — that opposed Covid-19 vaccine mandates, pushed false accounts of 2020 election fraud and circulated claims about about Hunter Biden’s laptop.

A federal district judge and the Fifth Circuit largely agreed with the red states that the efforts violated the First Amendment. Those courts imposed broad limits on interactions between federal officials and the social media giants.

The Biden administration appealed, saying public officials are free “to inform, to persuade and to criticize” social media platforms.

Federal government officials have also warned the justices that allowing lawsuits over contacts between the FBI and social media companies threatens to turn that major arena of modern American life into a kind of wild west because agents will refuse nearly all contact out of fear of being sued.

The Supreme Court is expected to issue a decision in the case by late June, just months before the November elections — and any ruling restricting government communications with social media platforms could have dramatic impacts on the spread of misinformation on the platforms.

The case to be argued Monday and two cases already pending at the high court over state social-media regulation laws in Florida and Texas also raise questions about the intersection of free-speech rights and digital platforms.

While the platforms won’t be arguing in Monday’s case, Murthy v. Missouri, they say they are stuck between the government and users, and want to make sure any ruling guarantees the companies’ rights to police content.

“It is very important that the court not infringe our members’ own editorial rights in the process of holding the government accountable for violating the First Amendment rights of the users themselves,” said Chris Marchese, director of the litigation center for NetChoice, a tech trade group that filed suits against the Florida and Texas laws.

No ruling has been issued yet in the Florida and Texas cases, but the battles over online speech seem to have divided the high court’s powerful, six-justice conservative wing.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have all signaled deep concern about the alleged smothering of conservative voices on social media and appear open to at least some kinds of legal interventions to combat it, while Chief Justice John Roberts and Justice Brett Kavanaugh seem to be sticking with a more centrist, traditional interpretation of the First Amendment that leaves little role for the courts in such disputes.

The views of the high court’s newest conservative, Justice Amy Coney Barrett, are less clear, but there are signs she may be in the traditionalist camp.

Last year, Barrett voted to put the Texas social-media statute on hold. And last October, when the high court agreed to hear the Murthy case and put a hold on a lower court ruling that would’ve blocked contacts between the federal government and platforms, she did not join a heated dissent written by Alito and backed by Thomas and Gorsuch.

The Supreme Court’s ultimate decision in the Murthy case is expected to turn on whether the Biden administration’s overt and behind-the-scenes pressure on the social media firms amounted to coercion that transformed the companies into agents of the federal government.

Despite tens of thousands of pages of discovery, the red-leaning states have come up with little in the way of explicit, behind-the-scenes threats from the federal officials who were leaning on Facebook, Twitter (now known as X), and YouTube to take down or reduce the visibility of content.

There is rarely any sort of “or else” in the recorded communications, although some at the social media firms feared potential legislative consequences that could damage their businesses including action to take away the provision, known as Section 230 of the Communications Decency Act, that protects them from lawsuits related to user-generated content.

In a March 2021 email to a Facebook official, senior Biden administration Covid adviser Andy Slavitt raged at what he contended was foot-dragging and lack of candor on the part of Facebook in its efforts to tackle Covid-related content federal officials considered dangerous.

Writing in an email chain with the subject line “You are hiding the ball,” Slavitt accused the company of being “not straightforward” and said it was less responsive than its peers.

“We have urgency and don’t sense it from you at all,” Slavitt wrote. “100% of the questions I asked have never been answered and weeks have gone by.”

“Internally we have been considering our options on what to do about it,” he added.

Slavitt did not elaborate in his message, but his vague reference to “options” came as the administration was publicly mulling proposals to rein in Section 230 and to step up antitrust enforcement that could damage the companies’ revenues.

The case has created some strange bedfellows, aligning civil liberties groups with conservatives, with both claiming Biden officials likely overstepped their constitutional bounds in their dealings with social media sites.

Jennifer Jones, a staff attorney at the Knight First Amendment Center, said Slavitt’s emails weren’t seeking to “inform” the platforms — as the White House claims — but were “berating them or vaguely threatening regulatory reprisal” and “could be read as an implicit threat.”

Other groups, including the Center for Democracy and Technology, raised concerns in their amicus brief that emails sent by Rob Flaherty, the White House’s digital strategy director, crossed into “impermissible coercion.”

Indeed, around the same time the administration’s pressure campaign was at its height, the White House communications director said it was reviewing tech platforms’ Section 230 legal protections and whether they should be liable for pushing false and harmful information

Separately, House Judiciary Committee Chair Jim Jordan (R-Ohio) has been probing Biden’s alleged collusion with tech platforms to censor conservative viewpoints on Covid-19 and the 2020 elections, holding hearings and collecting discovery in tandem with the Missouri and Louisiana attorneys general.

“That evidence shows that the Biden Administration has relentlessly pressured private entities — sometimes in cooperation with other private entities — to censor speech that the Administration disliked,” Jordan wrote in an amicus brief supporting the plaintiffs.

Flaherty, Slavitt and the White House did not respond to requests for comment.

In many ways, the public statements of the Biden White House and Biden himself were more coercive than what appears to have taken place in the direct interactions with the firms.

“They’re killing people. …The only pandemic we have is among the unvaccinated, and they’re killing people,” Biden said bluntly of Facebook and other platforms in July 2021, before retreating.

One plaintiff in the case suggested the Supreme Court lay down some clear guardrails, in part because one can never be sure who will be directing the White House’s interactions with social media companies.

Aaron Kheriaty, a physician and plaintiff in the case whose video opposing California’s Covid-19 vaccine mandates was removed by YouTube, said it’s important for the high court to write an opinion that addresses risks posed by both Republican and Democratic administrations.

“The fact that it’s been framed as a political issue is very dangerous,” Kheriaty said. “While people may be sympathetic to the current administration’s aims and goals, I think they’re going to think very differently about this question if a new administration is using that same infrastructure for other purposes.”

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