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Social media like Facebook, Twitter, and YouTube have played an increasingly prominent role in informing the public. Because such internet platforms rely chiefly on content provided by individuals whom they do not employ, the reliability of such content is often questionable and may be especially subject to foreign interference.

Because they are not governmental entities, social media platforms are not directly subject to the First Amendment, and they are currently shielded under the Communications Decency Act of 1966 from civil liability. They do, however, have the right to police content that they post not only to prevent harm but also to protect their own credibility. Moreover, they might be inclined to heed governmental concerns for fear that noncompliance might lead to anti-trust actions or other regulatory actions.

Can government pressure social media to remove content?

In a case brought by the states of Missouri and Louisiana and five social media users, Murthy v. Missouri raised the issue of whether communications from the Surgeon General Vivek Murthy, the White House, the Centers for Disease Control (CDC), the Federal Bureau of Investigation (FBI), the Cybersecurity and Infrastructure Security Agency (CISA), and other governmental agencies alerting social media to perceived misinformation regarding COVID-19 and the presidential election of 2020 and urging them to take action violated First Amendment free speech guarantees. 

A U.S. District Court had issued a preliminary injunction against the government, which the First Circuit Court of Appeals had largely upheld, but which the Supreme Court had stayed.

Supreme Court: Parties failed to show injury, lacked standing

The 6-3 majority opinion authored by Amy Coney Barrett, concluded that the lower courts had erred in extending standing to the parties, whom Barrett did not think had established an adequate case or controversy. 

Barrett observed that social media platforms have long “targeted speech they judge to be false or misleading,” both with respect to health issues surrounding COVID-19 and election reporting.

Although those bringing the case were objecting to decisions by social media platforms to remove or suppress information, “they seek to enjoin Governmental agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.”

Barrett argued that courts had traditionally refused to address injuries that result “from the independent action of some third party not before the court.” Moreover, in asking for an injunction, parties had the responsibility of establishing “a real and immediate threat of repeated injury.”

She did not think the parties had established either, while indicating that, had the parties been “seeking compensatory relief, the traceability of their past injuries would be the whole ball game.”

Social media companies may have removed content on own

Barrett did not believe it was possible in the case at hand to distinguish what the platforms may have done on their own, apart from any consideration of governmental persuasion or coercion. She further believed that lower courts had erred in lumping all the petitioners together rather than examining their claims individually, and that most of their claims about future harms were highly speculative. Barrett also noted that most governmental queries had subsided by 2022 as COVID-19 appear largely under control.

Petitioners had claimed a broad “right to listen,” involving “an interest in reading and engaging with the content of other speakers on social media.” Barrett responded that “This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech.”  She distinguished such broad claims from the recognized First Amendment right to “receive information and ideas” and noted that the parties in question had not pointed “to any specific instance of content moderation that caused them identifiable harm.”

Alito’s dissent raises possibility of governmental suppression

In his dissent, which was joined by Clarence Thomas and Neil Gorsuch, Justice Samuel Alito argued that “this is one of the most important free speech cases to reach this Court in years.”

Pointing to the valuable functions of freedom of speech and the importance of a “free marketplace of ideas,” Alito identified the dialogue surrounding COVID-19 as especially timely. 

Recognizing that “purely private entities like newspapers” may publish what they wish, he observed that the Court had in National Rifle Association of America v. Vullo (2024), warned against governmental coercion of such private entities.

Alito thought federal government implicitly threatened Facebook over content

He proceeded to muster evidence to show that throughout 2021 and 2022, “a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID-19-related speech.” 

Although these pressures might have been “more subtle than the ham-handed censorship found to be unconstitutional in Vullo,” Alito believed “it was no less coercive.”  He thought that governmental threats to bring antitrust actions could be particularly intimidating and relied on internet correspondence to demonstrate that social media had indeed been quite responsive to what Alito believed to have been continuing governmental hectoring and cajoling. 

Alito further thought that one of the petitioners, Jill Hines, had been able to show that she had been censured as a result of governmental conduct He thought that that the Supreme Court’s decision in Department of Commerce v. New York, 588 U.S. ____ (2019), extending standing to individuals who thought that a question on the U.S. Census regarding citizenship would depress response rates, was sufficient to establish Hines’ standing in this case. 

Alito noted that the “effects” of the governmental actions on social media persisted after the government largely ceased from its efforts and that they did “not come with expiration dates.” He further thought that an injunction against further governmental intimidation could mitigate these effects.

Alito thought requests were 'a covert scheme of censorship'

Directly addressing the First Amendment issues at stake, Alito argued that efforts to dictate or suppress speech are “presumptively unconstitutional.” He further noted how the government had leveled a $5 billion civil penalty in a case against Facebook in a data-privacy case and how Facebook had depended on the government to negotiate an agreement in order to maintain its trans-Atlantic operations.

Much as in Bantam Books, Inc. v. Sullivan (1963), a case involving governmental efforts against obscenity, Alito believed that governmental communications with Facebook had possessed similar “hallmarks of coercion.” Alito interpreted such communications not simply as requests but as a form of governmental browbeating. He believed that these actions had gone beyond use of the presidency as a “bully pulpit” and instead were “a covert scheme of censorship.” 

Alito accordingly believed that Hines was likely to succeed in her claim that the White House had coerced her speech and that she had standing to proceed.

Unresolved issues on government's influence on social media content

Because the majority decision focused chiefly on the issue of legal standing and because social media is so pervasive, the Court is likely to face similar issues in the future. Alito’s dissent certainly points out that there can be a fine line between governmental attempts to protect public and political health and coercion, especially when suggestions that appear in the form of a velvet glove requests might have an iron fist of governmental retaliation behind them. 

John R. Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University.

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