Advocates of Open Debate Online Struggle to Overcome Government Speech

Original article here

Those hoping for more open discourse on matters of national concern should not await the Supreme Court‘s decision in Murthy v. Missouri with much optimism.

During Monday morning’s oral arguments in the case, the justices sounded unlikely to restrict the White House’s ability to control content moderation on social media platforms such as Facebook despite evidence that the Biden administration browbeat and coerced the platforms to suppress dissenting views on issues ranging from COVID-19 to election integrity.

Murthy v. Missouri was the second time in a month that the Supreme Court heard arguments centering on the roles of government and social media in our national discourse.

Like the two NetChoice cases argued a few weeks ago, Murthy v. Missouri is about government efforts to control the information published on social media platforms; it also is about what the platforms euphemistically called “content moderation”; and it stems from the suppression of views dissenting from those espoused by the federal government.

But there end the similarities between these cases.

The NetChoice cases concerned state, rather than federal, efforts.  When Florida and Texas attempted to regulate social media, they did so through the legislative process, tailoring their efforts to promote the broad dissemination of viewpoints.

In Murthy, by contrast, the federal government used back channels between White House officials and social media executives to suppress views, even factually supported ones, at odds with the positions taken by the Biden administration.  The White House’s barrage of demands came paired with intimations that the administration would pursue increased antitrust enforcement against the platforms should they resist the government’s desires.

Courts Aghast

The parties affected by the executive branch’s effort and who brought the case include the states of Louisiana and Missouri as well as epidemiologists Jay Bhattacharya and Martin Kulldorff, famous for the Great Barrington Declaration that criticized mass lockdowns and advocated for targeted prevention strategies during the COVID-19 pandemic.

The plaintiffs uncovered reams of emails demonstrating the lengths to which executive branch actors went to ensure that views contrary to the White House’s would not be disseminated online.  The lower courts were aghast.

Having reviewed the large evidentiary record, District Judge Terry Doughty deemed the White House’s effort “the most massive attack against free speech in United States’ history,” and broadly enjoined executive branch agencies from communicating with the platforms.

On appeal, the 5th U.S. Circuit Court of Appeals narrowed the scope of Doughty’s injunction, but affirmed that, by threats and encouragement, the executive branch had coopted the social media platforms’ content moderation process, making the downgrade or deletion of plaintiffs’ posts a form of state action that violated the First Amendment.

The case received a markedly different reception at the Supreme Court, where the value of a public discourse informed by broad participation was not much discussed; nor were the implications of allowing officials with law-enforcement power to dampen speech because it disagreed with their own.

Instead, the object of greater solicitude by the justices was government speech, the ability of officials to persuade the public to act in the manner the government thinks best.  That speech is not guaranteed by the First Amendment; rather, it is incidental to the federal government’s sovereign status.

Public officials, after all, must communicate with the public, and it is naturally expected they will promote their own views of what constitutes good policy.

Lengthy Harangues

Deputy Solicitor General Brian Fletcher, arguing for the federal government, maintained that persuasive speech is all that the government used when seeking to have vaccine- or lockdown-skeptical posts deplatformed.

That may be a creative recharacterization of the lengthy harangues, neither mild nor persuasive in tone, emailed multiple times a week by White House officials to executives at Facebook, Google, and X (formerly Twitter). Nevertheless, Fletcher’s interpretation of these messages met with little skepticism from the bench, save for a few probing questions from Justices Clarence Thomas and Samuel Alito.

Two justices with past White House experience, Elena Kagan and Brett Kavanaugh, noted that contact between executive officials and media outlets is frequent and (in their view) generally untroubling.

Kagan, a veteran of the Clinton White House, stated (only half-jokingly) that she had extensive experience encouraging others to suppress their views, opining that it happens in some form or another “literally thousands of times a day in the federal government.”  Kavanaugh, an alumnus of the George W. Bush White House, worried that restrictions on government speech would inhibit the executive’s ability to demand that news outlets not publish information that put national security at risk.

Similarly, Justice Ketanji Brown Jackson expressed her concern that plaintiffs would be “hamstringing the government in the most important time periods.”

Louisiana Solicitor General J. Benjamin Aguinaga tried to assuage these concerns by pointing out that the government could restrict speech constitutionally where it demonstrated a compelling interest and used means narrowly tailored to that interest. That concession, though necessary, bought Aguinaga little support.

The justices continued to mire themselves and Aguinaga in hypotheticals not presented by the case before them.  Could the government order platforms to censor recruitment posts for terrorists? What about viral social media challenges in which children jump from windows? That one was the product of Jackson’s fertile mind.

Of course, hypotheticals are a mainstay of Supreme Court arguments because they aim at uncovering the principles behind the particular facts of the case at hand.  More so than lower courts, the Supreme Court must take a long view and anticipate the future cases to which its holdings will give rise.

Still, one gets the sense that justices occasionally invoke hypothetical difficulties to avoid resolving the concrete difficulties before them.  A listener paying attention to Monday’s proceedings might fairly draw that conclusion.

Resolving the Tension

As often has been the case this Supreme Court term, the issues animating public interest in Murthy v. Missouri are unlikely to be the basis for the court’s ultimate decision.

The high court may not even need to resolve the tension between government speech and First Amendment speech if it decides that the plaintiffs don’t have standing to bring the case. This was a route several justices, including Sonia Sotomayor and Amy Coney Barrett, seemed inclined to take.

Standing is a legal doctrine that ensures a case is litigated by a proper party with a concrete injury traceable to challenged conduct and fixable by a favorable decision. Although the plaintiffs in this case suffered past harm, they seek to stop the government from coercing the platforms in the future. So, they must demonstrate the probability of their own future injury.

Because the White House laundered its censorship through nongovernment entities and because some of the content moderation policies specific to COVID-19 have lapsed since, plaintiffs will struggle to make that showing.  Were the high court to hold that plaintiffs lack standing, it would not answer the First Amendment questions.

One need not be naïve about the typical quality of online discourse to lament the Supreme Court’s now likely refusal to restrict the federal government’s role as censor-by-proxy.

It is perhaps sad, but hardly an exaggeration, to call the constellation of major social media platforms the “modern public square.” Should the executive branch have free rein to determine what flourishes and what dies in that information ecosystem?

Contrary to Kagan’s comment during arguments that it “seems hard to overbear Facebook’s will,” there is no mystery to the formula for coercing cooperation from major social media platforms. The record in the Murthy case tells us as much.

The market dominance of the major social media platforms is the product of government largesse and government-granted preferences. They are, thus, uniquely vulnerable to the loss of government favor. Reform to laws such as the Communications Decency Act or renewed interest in the enforcement of antitrust laws would be, as Facebook founder and CEO Mark Zuckerberg put it, “an existential threat.”

Threaten either of these, as the Biden administration did repeatedly, and the platforms will likely bend over backward to comply with whatever standard of censorship the White House can devise.