The US Supreme Court began hearing oral arguments this week in a case that poses a significant challenge to government involvement with social media regulation. The case was brought to the courts by the attorneys general of Missouri and Louisiana alongside five individuals, and encompasses a litany of important questions concerning government communication, freedom of speech and the role of social media platforms.
Of the numerous issues raised in the case, the first pertains to whether states and individuals contesting these communications have “Article III” standing. In legal terminology, this determines if a party can appear before a federal court. The prerequisites include evidence that the plaintiff has suffered a specific injury, that the injury can be traced back to the opposing party, and that a favorable court decision could rectify the aforementioned injury.
Another issue at stake is whether the actions taken by the government effectively transformed the decision-making process of private social media companies concerning content moderation into what is legally referred to as “sanctioned state action.” Here, the term denotes a scenario where the government effectively controls or guides the actions of a private entity, in this case, social media companies. If the Court determines the moderation decisions as “sanctioned state action”, a debate on whether such action infringes upon citizens’ First Amendment rights to free speech may ensue.
Moreover, the case scrutinizes whether the terms dictating an injunction from a lower court that limits the government’s interaction with social media companies is appropriate.
During the federal government’s oral argument, Principal Deputy Solicitor General Brian Fletcher announced that the allegations made by the states and individuals were predominantly founded on past instances of their social media posts being moderated, with no discernible link to the government. The government further posited that its actions intended to combat misinformation and safeguard public health as well as democratic processes.
In the government’s brief, it accentuated the FBI’s role as a law enforcement agency responsible for relaying potential terrorist activity to social media platforms. However, the ultimate decision to restrict or remove content remains in the hands of the private companies, illustrating the ongoing balancing act between government intervention and private platform autonomy.
“Of course, the government cannot punish people for expressing different views, [b]ut so long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern—even if government officials state their views strongly and private actors change their speech or conduct in response,” the government acknowledged.
The plaintiffs’ attorney, Benjamin Aguinaga, argued that the federal government’s attempts to regulate misinformation related to COVID-19 vaccines and the 2020 election have infringed upon their First Amendment rights. This regulation, they argued, amounts to censorship and impedes open discourse on critical matters.
The case emerges in the wake of a decision from the US Court of Appeals for the Fifth Circuit which partially upheld a lower court’s preliminary injunction, barring Biden administration officials from pressuring social media companies into deleting or suppressing posts constituting protected free speech. However, the Appeals Court annulled most of the injunction whilst amending a section concerning the deletion of protected speech under duress.
The final ruling from the Supreme Court is anticipated by June 2024.