WASHINGTON — In a busy period that could set standards for free speech in the digital age, the Supreme Court on Monday will begin a dispute between Republican-led states and the Biden administration over how far the federal government can go in the fight against controversial messages on social media on topics such as COVID-19 and election security.
The justices will hear arguments in a lawsuit filed by Louisiana, Missouri and others accusing government officials of leaning on social media platforms to unconstitutionally suppress conservative views. Lower courts have sided with the states, but the Supreme Court has blocked those rulings while it examines the issue.
The Supreme Court is in the midst of a term heavy with social media issues. On Friday, the court set standards for when government officials can block their followers on social media. Less than a month ago, the court heard arguments over Republican-passed laws in Florida and Texas that ban major social media companies from removing posts because of the views they express.
The state law cases and those being discussed Monday are variations on the same theme, complaints that the platforms are censoring conservative views.
The states allege that communications officials from the White House, the surgeon general, the FBI and the U.S. Cyber Security Agency are among those who forced changes to online content on Facebook, X (formerly Twitter) and other media platforms.
“It is very threatening when the federal government uses the power and authority of the government to stop people from exercising their freedom of speech,” Louisiana Attorney General Liz Murrill said in a video released by her office posted online.
The government responds that none of the actions the states complain about comes close to problematic coercion. The states “have yet to identify a single case in which a government official sought to enforce a platform’s editorial decisions with the threat of adverse government action,” wrote Solicitor General Elizabeth Prelogar, the government’s top Supreme Court lawyer. Prelogar wrote that states also cannot “point to any evidence that the government ever imposed any sanctions when the platforms refused to moderate content that the government had flagged – as routinely happened.”
The companies themselves are not involved in the case.
Free speech advocates say the court should use the case to draw an appropriate line between the government’s acceptable use of the pulpit and coercive threats to free speech.
“The government does not have the power to threaten platforms to censor protected speech, but it must have the ability to engage in public debate so it can govern effectively and inform the public of its views,” said Alex Abdo, Knight First Amendment litigation director. Institute at Columbia University, said in a statement.
A three-judge panel of the New Orleans-based 5th US Circuit Court of Appeals had previously ruled that the government had likely applied unconstitutional pressure on the media platforms. The appeals panel said officials cannot seek to “enforce or significantly encourage” changes to online content. The panel had previously limited a more sweeping order from a federal judge, who sought to involve even more government officials and ban merely encouraging substantive changes.
A divided Supreme Court stayed the 5th Circuit’s ruling in October when it agreed to hear the case.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas reportedly rejected the Biden administration’s emergency declaration.
Alito wrote a dissent in October: “At this moment in our country’s history, what the Court has done will, I fear, be seen by some as giving the administration a green light to use heavy-handed tactics to undermine the presentation of distort the facts. views on the medium that increasingly dominates news distribution. That is most unfortunate.”
A decision in Murthy v. Missouri, 23-411, is expected by early summer.
