Supreme Court to hear arguments on free speech and social media: live updates

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Adam Liptak

The Supreme Court will hear arguments Monday on whether the Biden administration violated the First Amendment by combating what it said was misinformation on social media platforms.

It is the latest in an extraordinary series of cases this mandate requires judges to evaluate the meaning of free speech in the Internet age.

The case arose from a flurry of communications from administration officials urging platforms to remove posts on topics such as coronavirus vaccines and claims of voter fraud. Last year, a federal appeals court such interactions are very limited.

Alex Abdo, an attorney at Columbia University’s Knight First Amendment Institute, 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 government’s power to pressure social media platforms to suppress speech,” he said. “Our hope is that the Supreme Court will clarify the constitutional line between coercion and persuasion. The government does not have the authority to threaten platforms to censor protected speech, but it must have the ability to participate in public discourse in order to govern and inform the public of its views effectively.”

During this term, the court has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court establish 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 what messages to allow.

Those four cases, along with Monday’s, will collectively rebalance the power of the government and powerful tech platforms in the realm of free speech.

Here’s what else you should know:

  • The case, Murthy v. Missouri, No. 23-411, was brought by the attorneys general of Missouri and Louisiana, both Republicans, along with people who said his speech had been censored. They did not dispute that the platforms had the right to make independent decisions about what to include on their sites. But they said the conduct of government officials in urging them to remove 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 officials at the White House, the surgeon general’s office, the Centers for Disease Control and Prevention and the FBI likely had crossed constitutional lines in their attempt to persuade the platforms to remove posts about what they had flagged as misinformation. The panel, in an unsigned opinion, said officials had excessively tangled with the platforms or used threats to prompt them to act. The panel issued an injunction prohibiting many officials from significantly coercing or encouraging social media companies to remove content protected by the First Amendment.

  • The Biden administration filed an emergency request In September he asked the Supreme Court to suspend the court order, saying the government had the right to express its opinions and try to persuade others to take action. “A central dimension of presidential power is the use of the pulpit of office to try to persuade Americans – and American businesses – to act in ways that the president believes would advance the public interest,” wrote Attorney General Elizabeth B. Prelogue.

  • Court accepted the administration’s request, stayed the Fifth Circuit’s ruling and agreed to hear the case. Three judges dissented. “Government censorship of private expression is antithetical to our democratic form of government, and today’s decision is therefore deeply troubling,” wrote Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch.

  • A second argument on Monday raises a constitutional issue related about government power and freedom of expression, although not in the context of social media sites. It’s about whether a New York state official violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.

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