Washington — The Supreme Court on Monday is hearing arguments in a case that tests how far the federal government can go in pressuring social media companies to remove content it believes spreads misinformation before it crosses a constitutional line.
The case, known as Murthy v. Missouri, arose out of efforts during the early months of the Biden administration to push social media platforms to take down posts that officials said spread falsehoods about the pandemic and the 2020 presidential election.
A U.S. district court judge said White House officials, as well as some federal agencies and their employees, violated the First Amendment's right to free speech by "coercing" or "significantly encouraging" social media sites' content-moderation decisions.
The legal battle is one of five that the Supreme Court is considering this term that stand at the intersection of the First Amendment's free speech protections and social media. But it is the first of two that the justices will hear when they take the bench Monday that involves alleged jawboning, or informal pressure by the government on an intermediary to take certain actions that will suppress speech.
The second case raises whether a New York financial regulator violated the National Rifle Association's free speech rights when she pressured banks and insurance companies in the state to sever ties with the gun rights group after the 2018 shooting in Parkland, Florida.
Decisions from the Supreme Court in both cases are expected by the end of June.
The Biden administration's efforts to stop misinformation
The court is hearing arguments first in the case stemming from the Biden administration's efforts to pressure platforms including Twitter, now known as X, YouTube and Facebook, to take down posts it believed spread falsehoods about the pandemic and about the last presidential election.
Brought by five social media users and two states, Louisiana and Missouri, their challenge claimed their speech was stifled when platforms removed or downgraded their posts after strong-arming by officials in the White House, Centers for Disease Control, FBI and Department of Homeland Security.
The challengers alleged that at the heart of their case is a "massive, sprawling federal 'Censorship Enterprise,'" through which federal officials communicated with social media platforms with the goal of pressuring them to censor and suppress speech they disfavored.
First Amendment Violations Found in Biden Administration's Actions Towards Social Media Platforms
Following a ruling by U.S. District Judge Terry Doughty, it was determined that seven groups of Biden administration officials had violated the First Amendment. They were found to have turned the platforms' content-moderation decisions into state action by "coercing" or "significantly encouraging" their activities. As a result, limitations were placed on the types of communications agencies and their employees could have with the platforms, with some exceptions.
Subsequently, the U.S. Court of Appeals for the 5th Circuit also ruled that certain White House officials and the FBI had infringed on free speech rights by pressuring platforms to suppress content related to COVID-19 vaccines and the election. The court adjusted the scope of Doughty's order but maintained that federal employees should not be involved in coercing or significantly encouraging a platform's content-moderation decisions.
In October, the justices agreed to take on the case to determine whether the Biden administration had unlawfully worked to stifle speech on social media platforms such as Facebook, YouTube, and X. The Supreme Court temporarily halted the lower court's order that restricted Biden administration officials' interactions with social media companies.
In filings submitted to the court, the Biden administration argued that the social media users and states did not have the legal standing to bring the case forward. However, they emphasized that officials should have the freedom "to inform, to persuade, and to criticize."
Solicitor General Elizabeth Prelogar, who represents the government before the Supreme Court, expressed concern over the unprecedented limits imposed on the ability of the president's closest aides to address matters of public concern, the FBI's ability to handle security threats, and the CDC's ability to communicate public-health information.
She argued that senior Biden administration officials were using the bully pulpit to push social media companies to address false information on their platforms, which has never been a free speech violation. As long as the government is seeking to inform and persuade, and not compel, Prelogar wrote, its speech does not violate the First Amendment.
"Influence is also the natural result of successful efforts to inform, to persuade, or to criticize," Prelogar wrote. "That the platforms often acted in response to the government's communications thus does not remotely show that those communications were coercive."
But state officials behind the challenge told the court that accepting the Justice Department's argument would make the First Amendment "the easiest right to violate."
White House officials, they said, frequently coupled private demands for social media companies to remove posts with public references to adverse consequences they could initiate, such as antitrust reforms or changes to the law that protects platforms from civil liability over content posted by third parties.
"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.
The NRA's court fight
In the second case, the court will consider whether the former superintendent of the New York State Department of Financial Services violated the NRA's free speech rights when she pushed regulated insurance companies and banks to stop doing business with the group.
Superintendent Maria Vullo, who left her post in 2019, had been investigating since 2017 two insurers involved in NRA-endorsed affinity programs, Chubb and Lockton, and determined they violated state insurance law. The investigation found that a third, Lloyd's of London, underwrote similar unlawful insurance products for the NRA.
Then, after the Parkland shooting in February 2018, Vullo issued guidance letters that urged regulated entities "to continue evaluating and managing their risks, including reputational risks" that may arise from their dealings with the NRA or similar gun rights groups.
Later that year, the Department of Financial Services entered into consent decrees with the three insurance companies it was investigating. As part of the agreements, the insurers admitted they provided some unlawful NRA-supported programs and agreed to stop providing the policies to New York residents.
The NRA then sued the department, alleging that Vullo privately threatened insurers with enforcement action if they continued working with the group and created a system of "informal censorship" that was designed to suppress its speech, in violation of the First Amendment.
A federal district court sided with the NRA, finding that the group sufficiently alleged that Vullo's actions "could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action."
However, a federal appeals court ruled differently and concluded that the guidance letters and a press release could not be seen as unconstitutionally threatening or coercive. They were written in a fair and non-threatening manner, using words meant to persuade rather than intimidate.
The NRA took the case to the Supreme Court, which agreed to examine whether Vullo had violated the group's freedom of speech by encouraging financial entities to cut ties with them.
"Allowing unpopular speech to be the basis for negative regulatory action under the guise of 'reputational risk,' as Vullo attempted, would undermine a fundamental aspect of the First Amendment," the organization, represented in part by the American Civil Liberties Union, argued in a document submitted to the court.
The NRA contended that Vullo singled them out for their political speech and used her regulatory power in the trillion-dollar industry to push the institutions she supervised to blacklist the organization.
On the other hand, Vullo argued to the court that the insurance products the NRA offered its members were illegal. She also pointed out that the NRA had agreed to a consent order with the department after it was discovered that the group was promoting insurance products without the required state license, even after Vullo had left her position.
"The state's lawyers argued in a Supreme Court brief that accepting the NRA's arguments would establish a dangerous precedent. They stated, 'The NRA's arguments could lead to an increase in damages suits and discourage public officials from enforcing the law, even when dealing with entities like the NRA that have committed serious violations.'
According to the lawyers, the NRA is seeking special treatment from the Supreme Court based on its controversial stance. They also noted that the NRA has not claimed any restrictions on its freedom of speech rights."
