By MARK SHERMAN (Associated Press)
In a busy term that might establish rules for free speech in the digital era, the Supreme Court is considering a dispute between Republican-led states and the Biden administration about how much the federal government can do to address controversial social media posts on topics like COVID-19 and election security.
The judges are listening to arguments in a lawsuit brought by Louisiana, Missouri and other parties accusing officials in the Democratic administration of pressuring the social media platforms to unconstitutionally suppress conservative points of view. Lower courts have supported the states, but the Supreme Court stopped those decisions while it looks into the matter.
The high court is dealing with many social media issues this term. Recently, the court set out rules for when public officials can block their social media followers. Less than a month ago, the court heard arguments about laws in Florida and Texas, passed by Republicans, that prevent large social media companies from removing posts because of the opinions they express.
The cases about state laws and the one being argued on Monday are different versions of the same issue: complaints that the platforms are censoring conservative viewpoints.
The states argue that White House communications staffers, the surgeon general, the FBI and the U.S. cybersecurity agency are among those who coerced changes in online content on Facebook, X (formerly Twitter) and other media platforms.
Louisiana Attorney General Liz Murrill said in a video her office posted online, “It’s a very, very threatening thing when the federal government uses the power and authority of the government to block people from exercising their freedom of speech.”
The administration says that the states have not shown any instances of problematic coercion. Solicitor General Elizabeth Prelogar, the administration’s main Supreme Court lawyer, wrote that the states also can’t “point to any evidence that the government ever imposed any sanction when the platforms declined to moderate content the government had flagged — as routinely occurred.”
The companies themselves are not part of the case.
Advocates for free speech say the court should use the case to determine a proper boundary between the government’s acceptable use of the bully pulpit and coercive threats to free speech.
“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,” Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, said in a statement.
A panel of three judges on the New Orleans-based 5th U.S. Circuit Court of Appeals had ruled earlier that the Biden administration had probably brought unconstitutional pressure on the media platforms. The appellate panel said officials cannot attempt to “coerce or significantly encourage” changes in online content. The panel had previously narrowed a more sweeping order from a federal judge, who wanted to include even more government officials and prohibit mere encouragement of content changes.
The Supreme Court, which was not in agreement, paused the 5th Circuit decision in October, when it agreed to hear the case.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas did not support the urgent request from the Biden administration.
Alito disagreed in October, stating: "At this time in the history of our country, 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 influence the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate."
A decision in Murthy v. Missouri, 23-411, is expected by early summer.
