Social Media Censorship Takes Center Stage at SCOTUS
How Murthy v. Missouri could usher in a new era of truly free speech on social media - or destroy it altogether.
In what is being hailed by many as one of the most important free speech cases of our lifetimes, the U.S. Supreme Court today held oral arguments in Murthy v. Missouri (formerly known as Biden v. Missouri). The lawsuit was originally filed by the Attorneys General of Louisiana and Missouri and five individual social media users, alleging that federal officials - including, notably, those in the White House, CDC, and FBI - pressured social media companies to censor certain opinions about things like the origin of COVID-19, the efficacy of masking, and the safety and efficacy of the covid shots (I’ll leave you to guess which opinions were censored). Then in July of last year - July 4, 2023 to be exact - U.S. District Court Judge Terry Doughty issued an order restricting communications between the White House (and several federal agencies) and social media companies such as Facebook and X (formerly Twitter). Judge Doughty’s 155-page decision characterized the federal government’s actions with regard to the social media giants’ content moderation decisions as “coercion” or “significant encouragement” of censorship. On appeal, the Fifth Circuit agreed that officials in the federal government engaged in a “coordinated campaign” of social media censorship and upheld Judge Doughty’s order on appeal, although it narrowed the agencies that were restricted from engaging in communications with social media companies. The Biden administration appealed to the U.S. Supreme Court in September, asking for a stay of Judge Doughty’s order. The Court granted this request in October, and agreed to hear oral arguments in the case. That brings us to today.
The first issue that will have to be decided is whether the plaintiffs who filed the original lawsuit even have standing to sue. The Biden administration contends, among other things, that the individual social media users can’t prove that the social media companies censored their posts as a result of any government action, and that the states can’t show they’ve suffered any harm, and can’t bring suit on behalf of individual citizens for First Amendment violations. The individual users argue, of course, that the actions of federal officials directly influenced the decisions to censor their content, and the states assert that the posts of state officials have been similarly censored, which gives them standing to sue. The states also argue that the First Amendment’s free speech clause contains within it a “right to speak and listen” to the opinions of their citizenry, which informs their decision-making on important public policy issues. This makes sense, if we assume that our representative form of government is operating as intended, with state officials actually listen to the voices of all of their constituents and residents, and not only those with whom they share political fealty.
Assuming that standing is established (I think it will be), the Court will next turn to the merits of this case. Without getting into all of the legal weeds here, the core issue is whether the government participated in the alleged coordinated campaign of social media censorship, and if so, whether this is constitutionally permissible. For years now social media platforms have argued that their spaces are private, and as such, they are not bound by the mandates of the First Amendment’s free speech clause, which applies only to governmental entities. Facebook and X are not the government, true enough. But in some ways they are more powerful than the government with respect to the free exchange of ideas. Their spaces have become the modern “town square”, and with far more reach than any actual town square of the 21st century. And when the government begins to dictate to the social media companies which content is permissible and which should be censored, the platforms are no longer truly private.
While there is no evidence in this case that federal officials issued outright orders to the social media companies to take down certain content, there is evidence that they coerced the companies to do so using threats of repercussions if they failed to comply. Consider this excerpt from an article posted this past Saturday in the Washington Examiner, by U.S. Senator Eric Schmitt (who filed the lawsuit on behalf of Missouri when he was the state’s Attorney General in 2022):
This lawsuit exposed an unprecedented “censorship enterprise” in which Biden White House officials relentlessly pressured social media companies to remove posts or accounts and more strictly censor speech related to certain topics. Court documents unveiled a coordinated effort by executive branch employees, most notably Dr. Anthony Fauci, to discredit the “lab-leak theory” that the origins of COVID-19 stemmed from gain-of-function research in Wuhan, China. After Fauci’s extensive efforts to discredit and suppress that theory, Facebook expanded its content moderation to censor posts suggesting COVID-19 might have been man-made. Documents obtained by the House Select Subcommittee on Weaponization of the Federal Government paint an even clearer picture.
In July 2021, Facebook’s head of Global Affairs asked his colleagues why the company had been censoring this theory. Unsurprisingly, they answered, “Because we were under pressure from the [Biden] administration.” The more we look into the Biden administration’s actions to silence Americans, the worse it gets. Of note, the FBI now assesses that the lab-leak theory is the most likely explanation for the origin of COVID-19.
This censorship regime didn’t stop at suppressing the lab-leak theory. These officials colluded with social media companies to censor posts regarding the Hunter Biden laptop story, mask and vaccine efficacy, and more. The court found the platforms bowed down to the pressure and even sent “steady reports on their moderation activities to the officials.” Previous rulings noted that from the beginning, the social media companies cooperated with the White House officials’ demands, and one platform even made an employee “available on a regular basis.” Another platform gave the government officials access to a “Partner Support Portal” to ensure that their requests were “prioritized automatically.”
Social media sites aggressively censored the Hunter Biden laptop story as “Russian disinformation.” Former White House press secretary Jen Psaki said officials were “flagging posts” for social media companies, and the surgeon general accused social media companies of “killing people.” A federal judge even noted that the social media platforms’ responses to White House pressure often “bordered on capitulation.” This shouldn’t be happening in the United States.
The federal government claims that restricting its communications with social media companies presents a danger to the public, far greater apparently than the danger of losing your right to free speech - i.e., the proliferation of harmful “disinformation”. The problem with the government’s position, though, is that this means that only the government gets to decide what is disinformation and what is factual. As we saw all too clearly between 2020 and 2023, the government gets it wrong - and often. More than just “getting it wrong”, we now have evidence that they lied - and often. They lied about the safety and efficacy of masking. We know that they knew that wearing a paper or cloth mask was not an effective means of preventing the spread of a virus (as they labeled COVID-19), since the government’s own guidance for decades prior said so. They lied about the safety and efficacy of the covid shots. They lied about “14 days to flatten the curve.” They lied about the origins of covid. They lied about the number of people dying from covid. They lied about deadly hospital protocols, which actually killed more people than covid. They lied about Hunter’s laptop. They lied about election interference. They lied, they lied, they lied.
And they will continue to lie. So are these the people we want as our gatekeepers of truth? More to the point, do we want anyone to be our gatekeepers of truth? During oral arguments today, Justice Jackson remarked to Louisiana Solicitor General Benjamin Aguiñaga, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.” But the Founding Fathers, the Framers of our Constitution, were more concerned about the government hamstringing the people, especially during the most trying times. The First Amendment wasn’t created to protect the government’s voice. The government always has the loudest bullhorn. The Founders knew that. They recognized that what needs protecting are the voices of ordinary Americans. When those are stifled, you are left with little more than a propaganda state. We seem to be heading in that direction, but Murthy v. Missouri represents a crossroads. Let’s pray we choose the right path.
It was only a matter of time before the issue of free speech became this contentious for two reasons. First, our population began as a Protestant/Masonic majority so there wasn't much reason to believe a small minority of non-believers could ever dictate to the majority. That has drastically changed and now our society is made up of more non-believers and even anti-Protestants who have more power and influenced than the Protestants. Secondly, as the growth of the federal and state governments rule over the people has kept expanding into all parts of human life and been allowed to dictate to the people what the ruling class desires whether good or bad for the peasants, they have basically become tyrannical. And tyrants will not abide any dissent from what they demand.
But even when a majority population agrees on most things, there has always been a huge downside to freedom of speech and that is that lies are given the same authority and rights as truths and as the population becomes less inclined to want to know the truth or even believe that anything is true for everyone, everywhere and at all times, which is the case today, there is a proliferation of liars and it becomes difficult for even those who want to know the truth to be certain of it when it is told.