WASHINGTON, D.C. — Today, the U.S. Supreme Court heard two major cases having to do with the First Amendment and free speech. One of them, Murthy v. Missouri, could determine future communications between the government and online platforms.
At question in this case is how much government can or should communicate with, or apply pressure to, social media platforms like Facebook and X, formerly known as Twitter.
“Everybody realizes that the federal government could not itself suppress speech. Social media companies are ostensibly private corporations, and so they can do what they want, the First Amendment doesn’t apply to them,” said Michael Dimino, Professor of Law at Widener Law Commonwealth. “But if the government tries to pressure the social media companies into doing what the federal government couldn’t do, does that mean that the First Amendment is involved or that it’s not,” Dimino added.
Plaintiffs in the case include Missouri and Louisiana and individuals who say their social media content was targeted by the Biden Administration in an effort to limit misinformation about COVID 19, vaccine and mask efficacy as well as the 2020 Election.
The individuals allege the government used different tactics to influence social media companies to suppress content, which they argue violated their First Amendment rights.
Attorneys for the Justice Department said the instances in question were instances of persuasion and not coercion. They discussed the importance of government communication with social media platforms in certain scenarios, especially when it relates to national security.
DOJ attorneys also argued that limits on government interaction with social media could harm efforts to curb antisemitism and hate crimes. They said it could also affect domestic law enforcement efforts to fight child sexual exploitation on digital platforms.
Constitutional law experts say it’s a bit of a gray area and that the outcome probably won’t be clear cut.
“The answer is going to be somewhere in the middle, that some amount of pressure is going to be too much and is going to be unconstitutional, whereas some other behavior by the government is going to be okay,” said Dimino. “Trying to establish a clear line about how much influence is a constitutional problem is a really difficult exercise in in opinion drafting.”
Although the end result is unlikely to be clear and applicable, Dimino says the decision has the potential to shape future communications between the government and social media platforms.
“The most difficult thing is to try to establish a standard that separates the kind of actions that the government can take from the actions that go too far,” said Dimino. “The case is extremely important because the kinds of standards or factors that the court develops will have a big impact on the ability of the government to shape the way that issues of importance are addressed on social media and in other places,” he added.
During today’s questioning, many of the justices expressed concern about hindering federal government communications with social media platforms on issues like public health, national security and elections.
A decision is expected by the end of June.
