Against Coercion on Social Media: A Motion Against the Biden Administration and Other Electronic Communications Campaigned by a Civil Society Group
For example, a bipartisan group of current and former election officials submitted a brief emphasizing the importance of allowing people in their roles to “remain free to communicate with social media platforms to share accurate information about when, how, and where to vote; to correct false election information; and to address violent threats and intimidation directed at their own ranks.” They also said it’s important that election officials and government agencies are able to respond when social media companies reach out for help in promoting accurate voting information and limiting the spread of false content.
Members of the nonpartisan Election Protection coalition said they fear a ruling for the states would “endanger the right to vote as information sharing between and among civil society, government, and social media companies is essential to prevent malicious election interference and voter suppression efforts.”
Two negative consequences could result from a too-sensitive test for coercion, the committee wrote. First, it could chill the flow of information between government sources and the media. Second, it could license plaintiffs to pursue burdensome fishing expeditions for what they believe to be evidence of collusion between journalists and public officials.”
There is apelling interest in combatting vaccine misinformation that the Biden administration possesses, according to the American Medical Association. That’s because, according to the AMA, “it is an indisputable scientific fact that vaccinations save lives.”
The Association of American Physicians and Surgeons wrote that acceptance of the American Medical Association’s statement would allow government censorship of Robert Kennedy, a presidential candidate and leading voice in the anti-apartheid movement.
“The same arguments made by the AMA Amici could be extended to other types of speech disfavored by the Biden Administration, such as criticism of transgender procedures and late-term abortion,” the AAPS wrote.
NetChoice and the CCIA joined other groups to make a point about how their case intersects with this one. There needs to be a clear rule to prevent governments from using coercive tactics to get on the platform and force it to moderate content, according to a brief written by the groups. They also asked the court to clarify “that those digital services themselves are not state actors and may not be held liable for the government’s actions.”
Many of the amicus briefs were filed in support of neither party, even from the First Amendment groups that would usually be against such a case. “I take that as a sign of the sort of theoretical messiness of the issues in this case,” he said.
Unlike Bantam Books, Hans said, where “it’s pretty clear what happened, and it was also one specific instance of government interference, here we have a whole plethora of actions that are not necessarily created equal.” The Supreme Court may not be the appropriate place to resolve some of the more complex questions.
Gautam Hans, associate director of the First Amendment Clinic at Cornell Law School, anticipates Murthy v. Missouri being a difficult case for the court to parse through, since the states identify a vast range of different actions by different parts of the government with which they take issue.
The US Chamber of Commerce, a broad business group, warned the court in its brief against allowing the theory of state action to be used to punish private entities. If the Court sees this case through the lens of state action, it should confirm that the remedy for the government’s interference with private speech choices is to restrict the government from doing anything else.
When private actors conduct can be converted into state action, the standard was created in the case of Blum v. Yaretsky. “And therefore, that private actor can be held liable because they’re essentially acting at the behest of the government.”
Murthy v. Missouri: A Supreme Court Decision to Decide How the US Government Talks to Social Media Companies (SCOTUS to decide case on how the government talks to social media companies)
At the moment, various arms of the US government will communicate directly with platforms for all sorts of reasons. If Facebook wants to set up an information hub for its users during a global epidemic, the Centers for Disease Control and Prevention could email directly with someone at Facebook. (You can imagine similar scenarios for voter misinformation, election integrity, and all kinds of public emergencies.)
The court “found that the intent of the commission was not to educate or inform the book distributors about how to comply with the law, but rather to intimidate them into suppressing and censoring content that the commission didn’t like,” according to Jennifer Jones, staff attorney at the Knight First Amendment Institute at Columbia University. The court recognized that while it’s constitutional for the authorities to advise or persuade intermediaries to act in a certain way, the government had gone too far in this instance. When the acts become coercive, when they apply relentless pressure to the media to not publish speech that the government doesn’t like, that is in fact a violation of the Constitution.
Bantam Books is a case from 1963 involving a Rhode Island commission created to evaluate whether books were appropriate for minors. The court ruled that the commission effectively coerced book distributors to suppress certain works through intimidation.
The decision in Murthy v. Missouri will help determine the extent to which the Biden administration can notify social media platforms about potentially concerning content on their sites. That could affect the safeguards these companies have put up around misinformation, and may change the kind of flags and warnings you see on posts all over the internet. The Supreme Court is expected to make a decision before the elections in November.
If this legal argument sounds unsettlingly familiar, it may be because much of Murthy is echoed in Elon Musk’s extremely cursed crusade to make the “Twitter Files” a thing. The original Missouri state AG’s press release about the lawsuit references Hunter Biden’s laptop, the Wuhan lab leak theory, and the efficacy of masking.
First Amendment violation via public comments on Lindke v. Freed, a case involving the Oakland, Michigan, mayor and the Knight First Amendment Institute
Several interest groups wrote amicus briefs to the court warning that no matter how the justices rule, they should be careful not to craft a standard that harms these groups’ work.
The court issued a unanimous decision in Lindke v. Freed, a case about whether Port Huron, Michigan city manager James Freed violated the First Amendment by blocking and deleting comments on his Facebook page from resident Kevin Lindke, who critiqued Freed’s pandemic policies. If an official can be held liable for violating a citizen’s First Amendment right through actions they take on their social media pages, then this test could be used to do that.
The suggestion was that there could be a difference in the determination. He was entitled to a presumption that all his posts were personal, if Freed had a label like that on his account.
The court is right to agree that public officials cannot use their personal accounts to conduct official business, according to a statement from the senior counsel of the Knight First Amendment Institute.
Gary Lawkowski, a partner at the Dhuln Law Group, stated in an email that the biggest impact of the new opinion may be the language buried in the opinion, rather than the formal test set in its holding.
The Knight Institute challenged the former president for blocking users from his account. They argued his account was a “public forum” where people could not be excluded for their views, and the lower courts agreed. The supreme court ordered the lower court to throw out a ruling against Trump when he was no longer in office.