Stage Set for Major Supreme Court Ruling on Social Media Censorship

On March 18, the Supreme Court heard oral arguments in Murthy v. Missouri, a case that could result in one of the most significant First Amendment rulings in decades. While the issues raised in the case are complex, the central question is how far the government can go in pressuring social media companies to censor disfavored speech.

The case, originally brought as Missouri v. Biden, began as a lawsuit filed by the attorneys general of Missouri and Louisiana in 2022 over the Biden administration’s collusion with online platforms such as Facebook and Twitter to remove posts opposing COVID-19 vaccine mandates and pandemic lockdowns.

The plaintiffs won their cases in lower courts, which ruled that Biden administration requests to social media platforms for information on posts regarding COVID amounted to unconstitutional governmental coercion. In July 2023, the Fifth Circuit Court of Appeals issued a ruling restricting certain communications between Biden administration officials and employees at social media companies.

In the words of a Wall Street Journal report on the case, while “the government claims a right to the bully pulpit” to express its views on social media, the lower courts found that the Biden administration’s efforts sometimes went well beyond such expression. That is, the White House, the FBI, and public officials were found to have subtly threatened companies like Facebook and Twitter if they did not remove posts that the government judged to be misleading.

For example, in a March 2021 email to a Facebook contact, Biden White House aide Peter Flaherty warned that the government was “gravely concerned that your service is one of the top drivers of vaccine hesitancy – period,” and offered the government’s “help” in addressing the problem, on condition that Facebook wasn’t “playing a shell game with us when we ask you what is going on.”

As Justice Samuel Alito observed during the oral argument, such exchanges made it appear that the government was “treating Facebook and these other platforms like they’re subordinates.” When he asked Deputy Solicitor General Brian Fletcher whether the government would do the same thing to “the New York Times, the Wall Street Journal, or the Associated Press,” Deputy Solicitor General Brian Fletcher, arguing the case on behalf of the administration, responded lamely that Flaherty’s email seemed “unusual,” whereas “the idea that there be back and forth between the government and the media isn’t unusual at all.”

But of course, pressuring platforms to remove posts that the government deems harmful is quite unlike the sort of public give-and-take that routinely occurs between government and the media. There’s a world of difference between openly challenging and seeking to refute claims that the government disagrees with on the one hand, and aiming to have their expression suppressed entirely on the other.

Even though no evidence has been brought forward (to this author’s knowledge) to demonstrate that the Biden administration literally threatened legal action against platforms that failed to comply with its requests, social media executives are well aware of the regulatory powers that government is capable of exercising against it, for instance through antitrust suits. The risk of an exaggerated use of antitrust law to achieve partisan ends is particularly apparent under the Security and Exchange Commission’s current chair, Lina Khan, who takes a quite broad view of her powers.

Most damningly, former Biden Press Secretary Jen Psaki explained that her boss, who supports “a robust antitrust program,” also thinks “that there’s more that needs to be done to ensure that… misinformation, disinformation, damaging, sometimes life-threatening information is not going out to the American public.” It is not surprising, then, that a federal judge in Louisiana likened the administration’s pressure to make social media comply with its demands to an “Orwellian Ministry of Truth.”

To make matters worse, retrospective evidence demonstrates that while administering the COVID vaccines to vulnerable populations (especially the ill and the elderly) was an urgent matter, aiming to get children vaccinated, as the government did, was probably unnecessary and in some cases harmful. Meanwhile, as former Trump adviser on COVID Scott Atlas and Johns Hopkins economist Steve Hanke observe in a Wall Street Journal column that appeared the day after the Court heard Murthy (summarizing a report on “COVID Lessons Learned” that they issued with two co-authors), the government’s “unprecedented use of lockdowns, school closings, and other sweeping measures” to combat the disease were quite unsuccessful, “and many were gravely damaging.”

“Before 2020,” they observe, “it was recognized that communities respond best to pandemics when government measures are only minimally disruptive.” During COVID, however, government instead adopted unnecessarily restrictive practices that “intentionally stok[ed] fear.” The authors cite a recent study by the National Academy of Sciences finding that the U.S. “would have had 1.6 million fewer deaths” if it had followed the less restrictive policies of Sweden, “which kept most schools open and avoided strict lockdown orders.” The excess deaths resulted from causes like hospital shutdowns, and frightening patients who needed care for diseases like cancer or heart disease out of entering the hospitals that were available.

A National Bureau of Economics study that Atlas and Hanke cite further projected that the extended period of unemployment resulting from lockdowns “is projected to result in 840,000 to 1.22 million excess deaths over the next 15 to 20 years.” And possibly the worst policy error, they observe, was the “prolonged school closings,” resulting in significant learning loss, especially in poor families, such that by one estimate “today’s children will lose $17 trillion in lifetime earnings” as a result.

Of course hindsight, as the saying goes, is always 20-20, and it is easy to recall the panic that beset the entire nation at the start of the pandemic, resulting in the lunatic policies of shutting down everything from beaches to churches.

But the prime benefit of a free press is that it should facilitate the open exchange of views, some of them enlightening, some wacky, and many containing significant elements of truth that government bureaucrats may have overlooked. This is what the government denied the American people during the pandemic.

Recall, for instance, Anthony Fauci’s dogmatic dismissal of those who questioned his claim that COVID originated in a Chinese “wet market” rather than a nearby lab – a claim he did not retract, despite its manifest implausibility, until long after – with the claim that anyone who challenged him was rejecting “science,” since “I am science.” Social media companies largely accepted this view at face value and censored anyone who promoted evidence to the contrary.

Returning to the issue at hand, during oral argument in Murthy, Justice Brett Kavanaugh (who had served in the George W. Bush administration) observed that it was “probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, you know, if you run that, it’s going to harm the war effort and put Americans at risk.”

This seems sensible enough on its own. But Justice Ketanji Brown Jackson went further, asking Fletcher about whether the government could pressure social media to ban posts encouraging teenagers to jump out of windows “at increasing elevations.”

Jackson’s implication seems to be that the government has a right to work with (coerce) social media companies to remove any content the government finds objectionable. Her example only muddies the waters when the real issue is not banning incitements to suicide or violence, but rather suppressing opinions about questions of medical science, election fraud, and other matters of public policy about which reasonable (and sometimes unreasonable) human beings can disagree, but which government officials may wish to silence because the posts challenge their own preferred views.

If the government is barred under the First Amendment from pressuring book or newspaper publishers not to disseminate unfashionable, unscientific, and even crazy ideas, the same rule should apply against pushing social media companies to similarly censor disfavored speech.

David Lewis Schaefer is a Professor Emeritus of Political Science at College of the Holy Cross.