Are government officials violating the First Amendment when they pressure internet platforms to remove or restrict misinformation about COVID-19, alleged election fraud, or other matters of public concern? That proposal was presented to the Supreme Court on Monday and many justices seemed appropriately skeptical.
In one of several Internet-related cases considered by the court this term, a lawyer from Louisiana and Missouri and some individuals defended a court order that said federal officials, including White House staff, the surgeon general and employees of the FBI, they cannot “coerce or significantly encourage” social media companies to remove material.
It would be a violation of the First Amendment if the government forced internet platforms to moderate content, for example by threatening retaliation if the platforms did not follow the government's advice. That was essentially the argument in another case filed Monday involving a New York state official's attempt to discourage banks and insurance companies from providing services to the National Rifle Association.
In upholding (though limiting) an injunction issued by a federal district judge in the Louisiana and Missouri social media case, the U.S. Court of Appeals for the Fifth Circuit took a somewhat different approach. But that approach, if accepted by the Supreme Court, would prevent the government from suggesting that any material be removed or limited in its dissemination because of concerns about public health or national security.
The Supreme Court should reject that approach outright and make clear that the government violates free speech only when it uses its powers to compel compliance. The court should also make clear that “significant stimulus,” a phrase used in a 1982 decision, is not the prevailing legal standard. (The court could also determine that the two states lack standing to sue, but a ruling on the merits would be preferable.)
As Justice Brett M. Kavanaugh, an executive branch veteran, suggested in oral argument, such limitations on government would prohibit administrations from doing something they have regularly done even before the rise of the Internet: expressing discontent about particular stories to the media. . Kavanaugh said, “It's probably not unusual for government officials to protest an upcoming story about surveillance or detention policy and say, you know, if you publish that, it will hurt the war effort and put Americans at risk.”
This lawsuit must be seen in the context of a relentless campaign by conservatives to accuse the government and social media companies of censoring conservative content online. It also comes before the court during a presidential election year, in which voters are likely to be inundated with conspiracy theories such as Donald Trump's claim that the 2020 election was “rigged.”
A ruling against Louisiana and Missouri would make clear that government officials can ask social media companies to remove or restrict certain information, as long as there is no coercion. Of course, officials must be cautious about when and how they report what they consider to be misinformation. For example, White House officials would be wise to refrain from making suggestions to social media platforms about statements coming from the Trump campaign; Let Biden's re-election campaign register such complaints.
But government officials should be free to suggest to social media companies that some content is false or dangerous. This is how the court should decide.
