A federal appellate court concluded Sept. 8 that multiple White House, surgeon general, FBI and CDC officials likely breached the fine line separating permissible government persuasion and jawboning from illicit “coercion and significant encouragement” when they repeatedly — and often successfully — lobbied social-media companies “to remove disfavored content and accounts from their sites.”
In short, acts of “coerced censorship” by the platforms since early 2021 are now attributable to the federal government. This allows First Amendment free speech claims filed by Missouri, Louisiana and several individuals to proceed against officials like Surgeon General Vivek H. Murthy and White House press secretary Karine Jean-Pierre.
The government targeted for suppression views and alleged misinformation that didn’t comport with its stance on contentious topics like the COVID-19 lab-leak theory and the efficacy of pandemic lockdowns and vaccines. The U.S. Court of Appeals for the Fifth Circuit’s ruling in Missouri v. Biden temporarily bars the officials from “coerc[ing] or significantly encourag[ing] social-media companies to remove, delete, suppress, or reduce … posted social-media content containing protected free speech.” The court delayed the ban for 10 days, giving the government a chance to file an emergency appeal with the U.S. Supreme Court.
Stepping back from legal nuances such as what “significant encouragement” means (the Fifth Circuit said it’s when the government “exercise[s] some active, meaningful control over the private party’s decision”), Missouri v. Biden raises two larger points. The first is that the Supreme Court now has its hands full sorting out vital First Amendment issues affecting social-media platforms, while the second is that free-speech issues affecting the platforms are firmly entwined with the country’s political polarization.
Regarding the court’s internet agenda, the justices will hear arguments on Oct. 31 in two cases: Lindke v. Freed and O’Connor-Ratcliff v. Garnier. Both involve First Amendment claims against government officials who blocked citizens from following them on the officials’ personal social-media accounts.
The court will address the threshold state-action question: When is an official’s ostensibly private account sufficiently used for and related to his government position and activities, like communicating with constituents, that it should be treated as a government account and trigger First Amendment concerns? I asserted in The Hill in May, shortly after the court agreed to hear the cases, that “the realities of today’s communication environment necessitate affording a citizen broad First Amendment rights, unless officials use their social media accounts in a purely private-citizen manner that is devoid of job-related content and trappings.”
Furthermore, the court will likely soon agree to examine two cases — one from Florida, one from Texas — involving statutes that interfere with the editorial control and autonomy of large social-media platforms over their content-moderation practices regarding the content they host and where they host it. These two NetChoice cases (a trade association challenging both measures) carry the potential to finally give social-media platforms the same First Amendment rights over content that the court bestowed on print newspapers nearly 50 years ago in Miami Herald Publishing Co. v. Tornillo.
The odds of the court hearing the cases increased last month when U.S. Solicitor General Elizabeth Barchas Prelogar filed a brief contending that “[t]he platforms’ content-moderation activities are protected by the First Amendment” and that Florida and Texas “have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny.”
Missouri v. Biden now adds to this growing agenda. The court should squarely resolve the test and criteria for determining when governmental efforts to persuade and convince social-media companies to censor content cross the line into unconstitutional, government-coerced censorship. Regardless of whether the justices pass on hearing a possible emergency appeal by the Biden administration, the case will likely later return to the court.
The second point illustrated by Missouri v. Biden is the way in which political polarization in the United States influences our perception of government efforts to regulate social-media companies. Is Missouri v. Biden a case about safeguarding, from officious government meddling, the First Amendment speech rights of those holding dissenting viewpoints on divisive matters? Or is it about allowing the government to protect citizens from harmful misinformation about things like lab leaks, mask mandates, vaccines and election fraud? One’s politics surely informs the answers.
The New York Times, in an article about the Fifth Circuit’s decision, described it in the opening paragraph as “a victory for conservatives” and framed the dispute in the next as “a First Amendment case that has challenged the government’s ability to combat false and misleading narratives about the pandemic, voting rights and other issues that spread on social media.” A person who stopped reading there might view the case as about conservatives weaponizing the First Amendment to thwart thoughtful government efforts to protect the public from myriad woes.
Conversely, Missouri Attorney General Andrew Bailey focused on the free-speech side of the equation. He remarked that the Fifth Circuit’s decision prevents the government “from violating the First Amendment rights of millions of Americans.” He added elsewhere that “Missouri will continue to lead the way in the fight to defend our most fundamental freedoms.” Viewed through this lens, the case constitutes a righteous constitutional fight against overly aggressive government efforts to squelch dissent.
But it’s not just Missouri v. Biden where partisan politics is front-and-center in government efforts to police speech on social-media platforms. When Florida Gov. Ron DeSantis signed into law the content-moderation measure at issue in one of the NetChoice cases noted above, the Republican chastised “Silicon Valley elites,” proclaiming that “if Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.” Here, in contrast to Missouri v. Biden, conservatives view government meddling with how social-media platforms host content as virtuous.
Ultimately, hyperpartisan perspectives render it difficult for lawmakers to craft nuanced internet policies that carefully balance free-speech interests with the alleged harms some speech might inflict. Ratcheting down the rhetoric on all sides would certainly help.
Clay Calvert is nonresident senior fellow at the American Enterprise Institute and professor emeritus at the University of Florida in Gainesville. Specializing in First Amendment and media law, Calvert has published more than 150 law journal articles on topics affecting free expression, and he is lead author of Mass Media Law (22nd ed. 2023, McGraw Hill).
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