White House Violates First Amendment To Combat “Misinformation”

It is the latest in an extraordinary series of cases this term requiring the justices to assess the meaning of free speech in the internet era.

The case arose from a barrage of communications from administration officials urging platforms to take down posts on topics like the coronavirus vaccines, claims of election fraud and Hunter Biden’s laptop. Last year, a federal appeals court severely limited such interactions.

Alex Abdo, a lawyer with the Knight First Amendment Institute at Columbia University, said the Supreme Court’s review of that decision must be sensitive to two competing values, both vital to democracy.

This is an immensely important case that will determine the power of the government to pressure the social media platforms into suppressing speech. Our hope is that the Supreme Court will clarify the constitutional line between coercion and persuasion. The government has no authority to threaten platforms into censoring protected speech, but it must have the ability to participate in public discourse so that it can effectively govern and inform the public of its views.

The court this term has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that limit large social media companies from making editorial judgments about which messages to allow.

Those four cases, along with the one on Monday, will collectively rebalance the power of the government and powerful technology platforms in the realm of free speech.

A second argument on Monday poses a related constitutional question about government power and free speech, though not in the context of social media sites. It concerns whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.

Monday’s first case, Murthy v. Missouri, No. 23-411, was brought by the attorneys general of Missouri and Louisiana, both Republicans, along with individuals who said their speech had been censored.

They did not dispute that the platforms were entitled to make independent decisions about what to feature on their sites. But they said the conduct of government officials in urging them to take down what they say is misinformation amounted to censorship that violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed, saying that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention, and the F.B.I. had most likely crossed constitutional lines in their bid to persuade platforms to take down posts about what they had flagged as misinformation.

The panel, in an unsigned opinion, entered an injunction forbidding many officials to coerce or significantly encourage social media companies to remove content protected by the First Amendment.

Two members of the panel, Judges Edith B. Clement and Jennifer W. Elrod, were appointed by President George W. Bush. The third, Judge Don R. Willett, was appointed by President Donald J. Trump.

The Biden administration filed an emergency application in September asking the Supreme Court to pause the injunction, saying that the government was entitled to express its views and to try to persuade others to take action.

In response, lawyers for the states wrote that the administration had violated the First Amendment. “The bully pulpit,” they wrote, “is not a pulpit to bully.”

The court granted the administration’s application, put the Fifth Circuit’s ruling on hold and agreed to hear the case.

Three justices dissented. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” Justice Samuel A. Alito Jr. wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.

In a Supreme Court brief, the administration said it must be free to speak vigorously in pursuing its policy agenda. “So long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern — even if government officials state their views in strong terms, and even if private actors change their speech or conduct in response.

There was no evidence, the brief added, that the government had coerced the platforms.

Lawyers for Missouri and Louisiana said the administration routinely crossed the line from general persuasion to particular demands.

The government can speak freely on any topic it chooses, but it cannot pressure and coerce private companies to censor ordinary Americans.