The Supreme Court is poised to decide one of the most crucial free-speech issues of the internet age: whether the federal government can use private entities—in this case, Big Tech social media platforms such as Facebook, Twitter (now known as X), and YouTube—to stifle dissenting views in a manner that would clearly violate the First Amendment if the government did it directly.
On Oct. 20, the Supreme Court agreed, in the case of Murthy v. Missouri, to review a decision by a unanimous panel of the 5th U.S. Circuit Court of Appeals holding that “officials” at the Biden White House, the Surgeon General’s Office, the Centers for Disease Control and Prevention, and the FBI, among other government entities, had “made express threats and, at the very least, leaned into the inherent authority of the president’s office” to essentially coerce the platforms into suppressing the First Amendment-protected political speech of users who expressed disagreement with administration positions.
The Biden administration has made no bones about its practice of leaning on social media to maintain its official narrative on such issues as the efficacy of masking and vaccines in fighting COVID-19, alleged ballot improprieties connected with President Joe Biden’s election to the presidency in 2020, and the Hunter Biden laptop story.
In July 2021, President Biden accused Facebook of “killing people” by allowing Facebook users to question the scientific basis for such measures as lockdowns, masks for schoolchildren, and mandatory vaccinations for people who wanted to keep their jobs. This questioning was “misinformation,” or even, as a Biden-sympathetic mainstream media regularly phrased it, “lies.” Facebook’s parent company, Meta, scrambled to assure administration officials that the company would do better in “what the White House expects” from it “on misinformation going forward"—that is, that offending posts would be taken down.
And at least since the 2020 election, the FBI has been keeping tabs on a range of social media platforms—Facebook, Twitter, and YouTube in particular—to ensure the removal of users’ posts claiming election rigging, or better yet, the removal of the users themselves by either de-platforming or “shadow-banning” them by limiting their followers’ access. A “civic integrity policy” adopted by Twitter in 2021 led to the suspension of the accounts of President Donald Trump, Trump-supporting My Pillow CEO Mike Lindell, and Jim Hoft, founder of the conservative news site Gateway Pundit, for alleging that the 2020 election had been rigged. Mr. Hoft’s site also trumpeted the results of the New York Post’s investigation of Hunter Biden’s laptop.
As it happens, there’s mounting evidence that, contra the Biden administration’s claims, lockdowns, masks, and vaccines do little to halt the spread of COVID-19. But the First Amendment protects the dissemination even of false information, as long as it isn’t defamatory.
Documents and communications unearthed by plaintiffs’ lawyers revealed that the White House and the surgeon general’s office, for example, started flagging content and telling the tech firms to remove it, then moved to monitoring their moderation policies in increasing detail, then to badgering them repeatedly for their alleged failure to take steps to “mitigate vaccine hesitancy.”
By July 2021, when Biden made his “killing people” remark, Surgeon General Vivek Murthy was publicly calling the platforms “one of the biggest obstacles” to controlling COVID-19 and demanding that they “take action against misinformation super-spreaders.” Then, a few days later, according to the 5th Circuit, a White House official said it was “’reviewing‘ the legal liability of platforms—noting ’the president speak[s] very aggressively about’ that—because ’they should be held accountable.'”
Either from fear or a desire to please, the tech companies capitulated at every turn, the 5th Circuit wrote. The court upheld, with some modifications, an injunction issued by Judge Doughty that would bar the Biden administration from continuing its intimidation campaign against the platforms, but the Supreme Court, on a 6-3 vote, granted the Justice Department’s request for a stay until the case is resolved, probably sometime in 2024.
The administration maintains that its actions of the past three years were merely “jawboning”—the veiled threats of reprisal that presidents and legislators sometimes make when they have no legal authority to enforce their policies. The classic example was President John F. Kennedy in 1962 pressuring steelmakers not to renege on a promise not to raise prices in return for steelworker unions’ promise not to demand wage increases. President Kennedy announced an investigation into alleged price collusion by the steelmakers and threatened to break Pentagon contracts with U.S. Steel. The steel companies did what he wanted. In short, jawboning—the president expressing his views forcefully—can be lawful government speech.
But jawboning takes on a more sinister aspect when the ultimate target isn’t the companies being jawboned but third parties whose speech the government is trying to curtail by using the jawboned companies as intermediaries. Here, the law seems to demand that the government’s actions amount to coercion or control. The 5th Circuit found plenty of that in the Biden administration’s blatant censorship-outsourcing scheme of the past three years, and it’s unfortunate that the Supreme Court majority will let it continue into election year 2024.
As Supreme Court Justice Samuel Alito wrote in his dissent to the grant of stay, joined by Justices Clarence Thomas and Neil Gorsuch, “What the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news.”
