The Supreme Court considers when it is against the law for public officials to block social media critics
Social Media Freedoms in a Bipartisan First Amendment Court: Reply to Moody v. NetChoice and Vacuum Suppression
For example, a bipartisan group of current and former election officials submitted a brief emphasizing the importance of allowing people in their roles to “remain free to communicate with social media platforms to share accurate information about when, how, and where to vote; to correct false election information; and to address violent threats and intimidation directed at their own ranks.” It is important that election officials and government agencies are able to respond when social media companies reach out for help in promoting accurate voting information and limiting the spread of false content.
Members of the nonpartisan Election Protection coalition said they fear a ruling for the states would “endanger the right to vote as information sharing between and among civil society, government, and social media companies is essential to prevent malicious election interference and voter suppression efforts.”
The committee said that a too sensitive test could have negative consequences. First, it could cause a chill in the flow of information from government to the news media. The second option is to allow the people to pursue burdensome fishing expeditions because they believe they have evidence of official colluding with journalists.
The American Medical Association (AMA), along with other medical groups, stated in a brief that the Biden administration has an interest in combatting vaccine misinformation. According to the Americans Medical Association, vaccinations save lives.
But the smaller and conservative-oriented Association of American Physicians and Surgeons (AAPS) wrote in a brief that accepting the American Medical Association’s assertion would “green-light government censorship” of people like Robert F. Kennedy, Jr., a presidential candidate and leading voice in the anti-vaccine movement.
“The same arguments made by the AMA Amici could be extended to other types of speech disfavored by the Biden Administration, such as criticism of transgender procedures and late-term abortion,” the AAPS wrote.
Just recently the court heard another set of First Amendment challenges involving social media. In those cases, Moody v. NetChoice and NetChoice v. Paxton, the court considered whether state laws legislating how social media companies could moderate posts on their sites violated the platforms’ own First Amendment rights.
The First Amendment groups that would typically take a stand in such a case didn’t file any briefs in support of either party. He thought that it was a sign of the theoretical messiness of the issues in this case.
Unlike Bantam Books, Hans said, where “it’s pretty clear what happened, and it was also one specific instance of government interference, here we have a whole plethora of actions that are not necessarily created equal.” He stated that the Supreme Court might not be the best place to sort out difficult and fact specific questions.
Gautam Hans, associate director of the First Amendment Clinic at Cornell Law School, anticipates Murthy v. Missouri being a difficult case for the court to parse through, since the states identify a vast range of different actions by different parts of the government with which they take issue.
The theory of state action should not be used to penalize private entities according to the US Chamber of Commerce. “[E]ven if the Court views this case through the lens of state action, it should confirm that when the government interferes with private speech choices, the remedy lies in restraining the government — not in further abridging the rights of the coerced private parties with injunctions that limit the exercise of their own First Amendment rights,” the group wrote.
Jones believes that the Blum case created a standard for when private conduct can be used as a weapon in a state action. “And therefore, that private actor can be held liable because they’re essentially acting at the behest of the government.”
The Supreme Court of High-Censorship Judgments Appeals for Social Media Correspondence in the Context of the Presidential Campaign
Various arms of the US government will communicate with each other directly at the moment. If Facebook wants to set up an information hub for the users during a global flu outbreak, the Centers for Disease Control and Prevention might email with someone at the social networking site. (You can imagine similar scenarios for voter misinformation, election integrity, and all kinds of public emergencies.)
The court “found that the intent of the commission was not to educate or inform the book distributors about how to comply with the law, but rather to intimidate them into suppressing and censoring content that the commission didn’t like,” according to Jennifer Jones, staff attorney at the Knight First Amendment Institute at Columbia University. The court recognized that while it’s constitutional for the authorities to advise or persuade intermediaries to act in a certain way, the government had gone too far in this instance. “When the acts become coercive, and when they basically apply this unrelenting pressure so that the intermediaries don’t publish speech because the government doesn’t like it, that does, in fact, violate the Constitution.”
A commission was created in Rhode Island to evaluate whether books were appropriate for minor learners. The court ruled that the commission effectively coerced book distributors to suppress certain works through intimidation.
A case is being heard next Monday by the Supreme Court, which could change the rules for how social media platforms handle posts with politics or vaccine misinformation in them.
If this legal argument sounds unsettlingly familiar, it may be because much of Murthy is echoed in Elon Musk’s extremely cursed crusade to make the “Twitter Files” a thing. The original Missouri state AG’s press release about the lawsuit references Hunter Biden’s laptop, the Wuhan lab leak theory, and the efficacy of masking.
Several interest groups wrote amicus briefs to the court warning that no matter how the justices rule, they should be careful not to craft a standard that harms these groups’ work.
First Amendment Disclaimers: A unanimous ruling against Freed, a Port Huron, Michigan city manager, from the pandemic policies on Twitter
The court issued a unanimous decision in Lindke v. Freed, a case about whether Port Huron, Michigan city manager James Freed violated the First Amendment by blocking and deleting comments on his Facebook page from resident Kevin Lindke, who critiqued Freed’s pandemic policies. The test shows a new way to determine if an official can be held responsible for violating the First Amendment because of their actions on their social media pages.
Barrett suggested that simple disclaimers could make a difference in the determination. “Here, if Freed’s account had carried a label—e.g., ‘this is the personal page of James R. Freed’—he would be entitled to a heavy presumption that all of his posts were personal,” the ruling says, “but Freed’s page was not designated either ‘personal’ or ‘official.’”
Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University said in a statement the court was “right to hold that public officials can’t immunize themselves from First Amendment liability merely by using their personal accounts to conduct official business.”
Dhillon Law Group partner Gary Lawkowski said in an emailed statement about the new ruling that “the biggest impact of this opinion may not be the formal test set forth in its holding—rather, its language buried in the opinion that effectively creates a safe harbor for public officials who place disclaimers on their social media accounts, providing an easy way for public officials to stay on the ‘personal’ side of the law going forward.”
The Knight Institute challenged former President Donald Trump in 2017 over blocking users from his @realDonaldTrump Twitter account. The lower courts agreed with them that his account was a public place where people could not be excluded from their views. In 2021, when Trump was no longer in office, the Supreme Court ordered the lower court to vacate a ruling against Trump and dismiss it as moot.
