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Today, the Supreme Court ruled in a 6–3 decision that the plaintiffs who'd sued the US government for allegedly violating the First Amendment—by communicating with social media companies about misleading and harmful content on their platforms—did not present enough evidence to prove that they had standing to sue.
The case was brought by the attorneys general from Louisiana and Missouri, who alleged that government agencies have had undue influence on the content moderation practices of platforms and coerced the platforms into taking down conservative-leaning content, infringing on the First Amendment rights of their citizens. Specifically, the case alleged that government agencies like the Centers for Disease Control (CDC) and Cybersecurity and Infrastructure Security Agency (CISA) coerced social media companies into removing content, including posts that questioned the use of masks in preventing Covid-19 and the validity of the 2020 election.
In a May 2022 statement, Missouri attorney general Eric Schmitt alleged that members of the Biden administration “colluded with social media companies like Meta, Twitter, and YouTube to remove truthful information related to the lab-leak theory, the efficacy of masks, election integrity, and more.” Last year, a federal judge issued an injunction that barred the government from communicating with social media platforms.
Today, the court said that the plaintiffs could not prove that communications between the Biden administration and social media companies resulted in “direct censorship injuries.” In the majority opinion for Murthy v. Missouri, Justice Amy Coney Barrett wrote that “the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.”
While it is the government’s responsibility to make sure it refrains from jawboning—the practice in which governments and leaders appeal to the public in an effort to influence the behavior of private companies, and in ways that potentially violate free speech—Kate Ruane, director of the free expression project at the Center for Democracy and Technology, says that there are very valid reasons why government agencies might need to communicate with platforms.
“Communication between the government, social media platforms, and government entities is critical in providing information that social media companies can use to ensure social media users have authoritative information about where you're supposed to go to vote, or what to do in an emergency, or all of those things,” she says. “It is very useful for the government to have partnerships with social media to get that accurate information out there.”
Google and Meta declined to comment on the case.
David Greene, civil liberties director at the Electronic Frontier Foundation, says that the court’s decision earlier this cycle on a case called National Rifle Association v. Vullo was likely an indicator for how it would approach the Murthy decision. In the Vullo case, the NRA alleged that New York Department of Financial Services superintendent Maria Vullo pressured banks and insurance companies not to do business with the NRA by threatening “enforcement actions," and suppressed the organization’s advocacy. In a 9–0 decision, the court ruled that the NRA had presented enough evidence that a case against Vullo could move forward. In the opinion, Justice Sonia Sotomayor wrote that the NRA’s complaint “plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy.”
In Murthy, however, the justices found that the plaintiffs had not presented enough evidence to show that the government had used similar tactics to pressure platforms into making content moderation decisions.
“Other than that the facts involved are sort of politically motivated, the legal issue itself is not something that I think traditionally breaks down along partisan lines,” says Greene.
But Greene says that without clear guidelines, state, local, and federal government bodies—of all political leanings—could feel freer to contact platforms now. “We will see a lot more of that type of government involvement in these processes,” he says.
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