Supreme Court considers government’s relationship with social media

The Supreme Court on Monday heard arguments in Murthy v. Missouri, a case testing whether the constitutional right to free speech prevents the government from being involved in social media moderation. The Biden administration had appealed the 5th Circuit Court of Appeals’ September ruling that the government could not participate in social media companies’ content moderation policies. The lower court had issued an injunction preventing Biden administration officials from colluding with social media companies in content moderation. The appeals court ruled that certain government officials had engaged in a “broad pressure campaign designed to coerce social media companies into suppressing speakers, viewpoints, and content disfavored by the government.”

What did the Biden administration argue in court today? U.S. Principal Deputy Solicitor General Brian Fletcher argued that the respondents—Missouri, Louisiana, and five individual social media users—did not have standing under Article III of the U.S. Constitution. He also argued that the social media platforms did not become state actors in their content moderation decisions simply as a result of discussing them with the government. He argued that the government did not “coerce” social media companies, so much as “persuade” them in their content moderation decisions. In its brief to the Supreme Court before arguments, the government argued that the 5th Circuit’s injunction was overbroad. Ohio had filed an amicus brief against the lower court’s injunction.

What did the states and individuals have to say? Louisiana Solicitor General Benjamin Aguinaga told the court that the government had engaged in censorship in its collusion with social media companies. He added that the government had intended to suppress speech and that the Supreme Court had previously decided in 1963 in Bantam Books, Inc. v. Sullivan that the government could not do so, even through private companies. He argued that if what the government deemed “false” speech was spreading, the remedy officials should use was proactively spreading what it deemed “true” speech. He said suppressing “false” speech was not an appropriate remedy. In their legal brief, the states and individuals argued that the government was seeking to flip the First Amendment “on its head” to protect its own speech.

Dig deeper: Read Daniel R. Suhr’s opinion column about how the U.S. government should not use private organizations to restrict free speech.

For further reading: Read Leo Briceno’s report about how the House of Representatives approved a bill last week to ban TikTok.