Supreme Court to Hear Arguments on Free Speech and Social Media: Live Updates

The case arose from a barrage of communications from administration officials urging platforms to take down posts on topics like the coronavirus vaccines and claims of election fraud. Last year, a federal appeals court severely limited such interactions.

Alex Abdo, a lawyer with the Knight First Amendment Institute at Columbia University, said the Supreme Court’s review of that decision must be sensitive to two competing values, both vital to democracy.

“This is an immensely important case that will determine the power of the government to pressure the social media platforms into suppressing speech,” he said. “Our hope is that the Supreme Court will clarify the constitutional line between coercion and persuasion. The government has no authority to threaten platforms into censoring protected speech, but it must have the ability to participate in public discourse so that it can effectively govern and inform the public of its views.”

The court this term has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that limit large social media companies from making editorial judgments about which messages to allow.

Those four cases, along with the one on Monday, will collectively rebalance the power of the government and powerful technology platforms in the realm of free speech.

Here’s what else to know:

• The case, Murthy v. Missouri, No. 23-411, was brought by the attorneys general of Missouri and Louisiana, both Republicans, along with individuals who said their speech had been censored. They did not dispute that the platforms were entitled to make independent decisions about what to feature on their sites. But they said the conduct of government officials in urging them to take down what they say is misinformation amounted to censorship that violated the First Amendment.

• A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed, saying that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention, and the F.B.I. had most likely crossed constitutional lines in their bid to persuade platforms to take down posts about what they had flagged as misinformation. The panel, in an unsigned opinion, said the officials had become excessively entangled with the platforms or used threats to spur them to act. The panel entered an injunction forbidding many officials to coerce or significantly encourage social media companies to remove content protected by the First Amendment.

• The Biden administration filed an emergency application in September asking the Supreme Court to pause the injunction, saying that the government was entitled to express its views and to try to persuade others to take action. “A central dimension of presidential power is the use of the office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the president believes would advance the public interest,” Solicitor General Elizabeth B. Prelogar wrote.

• The court granted the administration’s application, put the Fifth Circuit’s ruling on hold and agreed to hear the case. Three justices dissented. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” Justice Samuel A. Alito Jr. wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.

• A second argument on Monday poses a related constitutional question about government power and free speech, though not in the context of social media sites. It concerns whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.

The government’s actions at the heart of the case were intended largely as public health measures during the coronavirus pandemic. But a federal judge in Louisiana framed his ruling back in July through the filter of partisan culture wars — asking whether the government violated the First Amendment by unlawfully threatening the social media companies to censor speech that the Biden administration found distasteful and potentially harmful to the public.

In his ruling, Judge Terry A. Doughty described dozens of interactions between the administration and social media companies, including how two months after President Biden took office, his top digital adviser had emailed officials at Facebook urging them to do more to limit the spread of “vaccine hesitancy” on the social media platform.

Judge Doughty also outlined how officials at the Centers for Disease Control and Prevention had held “weekly sync” meetings with Facebook, once emailing the company 16 “misinformation” posts. And in the summer of 2021, he wrote, the surgeon general’s top aide had repeatedly urged Google, Facebook and Twitter to do more to combat disinformation.

The court, the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, hears appeals from federal trial courts in Louisiana, Mississippi and Texas. Those forums often attract ambitious lawsuits from conservative litigants correctly anticipating a favorable reception, and rulings from trial judges in those states are often affirmed by the Fifth Circuit.

But when those cases reach the Supreme Court, they sometimes fizzle out. An attack on the constitutionality of the Consumer Financial Protection Bureau, endorsed by three Trump appointees on the Fifth Circuit, did not seem to fare well before the justices when it was argued in October. Another, in which the Fifth Circuit struck down a federal law barring domestic abusers from carrying guns, was also met with skepticism.

Other rulings from the Fifth Circuit, on issues like immigration, abortion pills and so-called ghost guns, have also met with at least tentative disapproval from the Supreme Court, suggesting that the appeals court is out of step with the justices.

At a news briefing in September, Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said the Fifth Circuit had staked out positions that “at least some of the center bloc of conservatives aren’t going to be able to stomach.”

He added that some of the rulings by the Fifth Circuit were “delivered from Crazy Town” and that “it would be shocking if at least some of those decisions are not reversed.”

Last month, the Supreme Court considered two cases on whether Florida and Texas could limit prominent social media companies from moderating content on their platforms, appearing skeptical of the breadth of laws that had been enacted in an effort to shield conservative voices on technology sites.

On Friday, the court, in two unanimous rulings, set requirements for when elected officials could block people from their social media accounts.

The court’s decisions in the five cases will have broad political and economic implications. A ruling that tech platforms have no editorial discretion to decide which posts to allow, for instance, would expose users to a greater variety of viewpoints, but it would almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.