Supreme Court will decide Biden-GOP clash over social media and COVID disinformation

Light illuminates part of the Supreme Court building at dusk

Oct. 20, 2023 2:11 PM PT

WASHINGTON — The Supreme Court agreed Friday to hear a second major case on social media and will decide whether the Biden White House violated the 1st Amendment when it urged platforms to take down “misinformation and disinformation” about COVID-19.

Three conservatives dissented and said the court should have kept in place a judge’s order that barred administration officials from contacting social media sites.

“Government censorship of private speech is antithetical to our democratic form of government,” Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch wrote, calling the court’s move to rule on the issue “highly disturbing.”

The justices now have before them two contrasting views of how the 1st Amendment’s right to free speech applies to social media, both of which were endorsed by conservative judges from the 5th Circuit Court of Appeals in New Orleans.

The first view holds that a state (in this instance, Texas) does not violate the 1st Amendment if it imposes heavy fines on privately run social media sites for allegedly discriminating against conservative viewpoints.

The second view is that federal officials violated the 1st Amendment when they “significantly encouraged” social media sites to remove disinformation.

The common element in both cases is that Republican officials in Texas, Louisiana and Missouri as well as the 5th Circuit judges believe conservative viewpoints are being unfairly suppressed on social media.

Last month, the justices agreed to hear a free-speech challenge to a Texas law that authorized the state to regulate popular social media sites like Facebook, Twitter and YouTube. NetChoice, a coalition of tech groups, contended the law violated the free-speech rights of the social media sites, but the 5th Circuit upheld the law on the theory that the state was seeking to combat “censorship.” The high court had blocked the law from taking effect by a 5-4 vote.

The new case did not arise from complaints by social media sites but instead from a suit brought by Republican state attorneys general from Missouri and Louisiana. They said federal officials, including the surgeon general and the FBI, had conspired to “censor disfavored speech” by “significantly encouraging social media platforms” to remove some postings.

They took their complaint to U.S. District Judge Terry Doughty, a Trump appointee in Monroe, La., who handed down an unusually far-reaching order on the Fourth of July that prohibited dozens of federal officials and agencies from “urging or encouraging” the removal of “protected speech” from social media. He described the administration’s conduct as “arguably … the most massive attack against free speech in United States’ history.”

The Biden administration appealed to the 5th Circuit, but in early September, a different panel of three judges upheld most of the judge’s ruling.

They said administration “officials have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government. The harms that radiate from such conduct extend far .... It impacts every social-media user.”

The injunction says the White House and “their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.”

U.S. Solicitor General Elizabeth B. Prelogar, representing the government, filed an emergency appeal asking the Supreme Court to block the judge’s order and to rule on the constitutional dispute.

She said the case “concerns an unprecedented injunction installing the U.S. District Court for the Western District of Louisiana as the superintendent of the Executive Branch’s communications with and about social-media platforms — including senior White House officials’ speech addressing some of the most salient public issues of the day.”

She said the district and appellate judges in Louisiana “did not identify any threat, implicit or explicit, of adverse consequences” if a social media site refused to remove certain content. Even so, they “entered a sweeping preliminary injunction governing thousands of federal officials’ and employees’ speech concerning any content posted on any social-media platform by anyone,” she said.

She argued the states had no standing to sue, and White House officials were free to speak out against the spread of falsehoods about COVID vaccines or the 2020 election. “It is undisputed that the content-moderation decisions at issue in this case were made by private social-media companies, such as Facebook and YouTube,” she said in Murthy vs. Missouri.

The complaints from the Republican state attorneys general were not limited to COVID-19. In their response to the appeal, they told the court that “the FBI orchestrated a deceptive campaign to induce platforms to censor the New York Post’s October 14, 2020 story about Hunter Biden’s laptop, just before the 2020 election.” In early 2021, when President Biden moved into the White House, “federal censorship activities escalated dramatically,” they added.

Jeff Landry, the Louisiana attorney general who filed the original suit, won election last week as the state’s governor.