Washington — The Supreme Court on Monday is hearing arguments in a case that tests how far the federal government can go in pressuring social media companies to remove content it believes spreads misinformation before it crosses a constitutional line.
The case, known as Murthy v. Missouri, arose out of efforts during the early months of the Biden administration to push social media platforms to take down posts that officials said spread falsehoods about the pandemic and the 2020 presidential election.
A U.S. district court judge said White House officials, as well as some federal agencies and their employees, violated the First Amendment’s right to free speech by “coercing” or “significantly encouraging” social media sites’ content-moderation decisions.
The legal battle is one of five that the Supreme Court is considering this term that stand at the intersection of the First Amendment’s free speech protections and social media. But it is the first of two that the justices will hear when they take the bench Monday that involves alleged jawboning, or informal pressure by the government on an intermediary to take certain actions that will suppress speech.
The second case raises whether a New York financial regulator violated the National Rifle Association’s free speech rights when she pressured banks and insurance companies in the state to sever ties with the gun rights group after the 2018 shooting in Parkland, Florida.
Decisions from the Supreme Court in both cases are expected by the end of June.
The Biden administration’s efforts to stop misinformation
The court is hearing arguments first in the case stemming from the Biden administration’s efforts to pressure platforms including Twitter, now known as X, YouTube and Facebook, to take down posts it believed spread falsehoods about the pandemic and about the last presidential election.
Brought by five social media users and two states, Louisiana and Missouri, their challenge claimed their speech was stifled when platforms removed or downgraded their posts after strong-arming by officials in the White House, Centers for Disease Control, FBI and Department of Homeland Security.
The challengers alleged that at the heart of their case is a “massive, sprawling federal ‘Censorship Enterprise,'” through which federal officials communicated with social media platforms with the goal of pressuring them to censor and suppress speech they disfavored.
U.S. District Judge Terry Doughty found that seven groups of Biden administration officials violated the First Amendment because they transformed the platforms’ content-moderation decisions into state action by “coercing” or “significantly encouraging” their activities. He limited the types of communications agencies and their employees could have with the platforms, but included several carve-outs.
The U.S. Court of Appeals for the 5th Circuit then determined that certain White House officials and the FBI violated free speech rights when they coerced and significantly encouraged platforms to suppress content related to COVID-19 vaccines and the election. It narrowed the scope of Doughty’s order but said federal employees could not “coerce or significantly encourage” a platform’s content-moderation decisions.
The justices in October agreed to decide whether the Biden administration impermissibly worked to suppress speech on Facebook, YouTube and X. The high court temporarily paused the lower court’s order limiting Biden administration officials’ contact with social media companies.
In filings with the court, the Biden administration argued that the social media users and states lack legal standing to even bring the case, but said officials must be free “to inform, to persuade, and to criticize.”
“The court imposed unprecedented limits on the ability of the president’s closest aides to speak about matters of public concern, on the FBI’s ability to address threats to the nation’s security, and on CDC’s ability to relay public-health information,” Solicitor General Elizabeth Prelogar, who represents the government before the Supreme Court, said.
She argued that senior Biden administration officials were using the bully pulpit to push social media companies to address false information on their platforms, which has never been a free speech violation. As long as the government is seeking to inform and persuade, and not compel, Prelogar wrote, its speech does not violate the First Amendment.
“Influence is also the natural result of successful efforts to inform, to persuade, or to criticize,” Prelogar wrote. “That the platforms often acted in response to the government’s communications thus does not remotely show that those communications were coercive.”
But state officials behind the challenge told the court that accepting the Justice Department’s argument would make the First Amendment “the easiest right to violate.”
White House officials, they said, frequently coupled private demands for social media companies to remove posts with public references to adverse consequences they could initiate, such as antitrust reforms or changes to the law that protects platforms from civil liability over content posted by third parties.
“By silencing speakers and entire viewpoints across social-media platforms, defendants systematically injure plaintiffs’ ability to participate in free online discourse,” state officials from Louisiana and Missouri wrote.
The NRA’s court fight
In the second case, the court will consider whether the former superintendent of the New York State Department of Financial Services violated the NRA’s free speech rights when she pushed regulated insurance companies and banks to stop doing business with the group.
Superintendent Maria Vullo, who left her post in 2019, had been investigating since 2017 two insurers involved in NRA-endorsed affinity programs, Chubb and Lockton, and determined they violated state insurance law. The investigation found that a third, Lloyd’s of London, underwrote similar unlawful insurance products for the NRA.
Then, after the Parkland shooting in February 2018, Vullo issued guidance letters that urged regulated entities “to continue evaluating and managing their risks, including reputational risks” that may arise from their dealings with the NRA or similar gun rights groups.
Later that year, the Department of Financial Services entered into consent decrees with the three insurance companies it was investigating. As part of the agreements, the insurers admitted they provided some unlawful NRA-supported programs and agreed to stop providing the policies to New York residents.
The NRA then sued the department, alleging that Vullo privately threatened insurers with enforcement action if they continued working with the group and created a system of “informal censorship” that was designed to suppress its speech, in violation of the First Amendment.
A federal district court sided with the NRA, finding that the group sufficiently alleged that Vullo’s actions “could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action.”
But a federal appeals court disagreed and determined that the guidance letters and a press release couldn’t “reasonably be construed as being unconstitutionally threatening or coercive,” because they “were written in an even-handed, nonthreatening tone” and used words intended to persuade, not intimidate.
The NRA appealed the decision to the Supreme Court, which agreed to consider whether Vullo violated the group’s free speech rights when she urged financial entities to sever their ties with it.
“Allowing unpopular speech to form the basis for adverse regulatory action under the guise of ‘reputational risk,’ as Vullo attempted here, would gut a core pillar of the First Amendment,” the group, which is represented in part by the American Civil Liberties Union, told the court in a filing.
The NRA argued that Vullo “openly targeted the NRA for its political speech and used her extensive regulatory authority over a trillion-dollar industry to pressure the institutions she oversaw into blacklisting the organization.”
“In the main, she succeeded,” the organization wrote. “But in doing so, she violated the First Amendment principle that government regulators cannot abuse their authority to target disfavored speakers for punishment.”
Vullo, though, told the court that the insurance products the NRA was offering its members were unlawful, and noted that the NRA itself signed a consent order with the department after Vullo left office after it found the group was marketing insurance producers without the proper license from the state.
“Accepting the NRA’s arguments would set an exceptionally dangerous precedent,” lawyers for the state wrote in a Supreme Court brief. “The NRA’s arguments would encourage damages suits like this one and deter public officials from enforcing the law — even against entities like the NRA that committed serious violations.”
The NRA, they claimed, is asking the Supreme Court to give it “favored status because it espouses a controversial view,” and the group has never claimed that it was unable to exercise its free speech rights.
