The Media Today

Which way will the Supreme Court lean on the government talking to the platforms?

September 21, 2023
AP Photo/J. Scott Applewhite

In July, Terry Doughty, a federal judge in Louisiana, ruled that discussions between the federal government and social media platforms as to what content they should or shouldn’t allow—around the efficacy of COVID vaccines, for example—constituted an attempt to coerce the platforms, and as such were a violation of the First Amendment’s protection against government interference in speech. Indeed, Doughty described this kind of conduct as the “most massive attack against free speech in United States history.” He ordered officials from a range of government agencies to stop talking to tech companies about content moderation, and also prohibited these officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” certain academics whose work focuses on social media.

As I explained at the time, the allegation that the government has colluded with social media companies to censor speech is not new; in the case in which Doughty ruled, the attorneys general of Louisiana and Missouri argued that officials had begun a “systematic campaign” to control speech on social media as early as 2017. The federal government subsequently appealed Doughty’s ruling, arguing that in talking with the social platforms, officials were merely trying to promote “responsible actions to protect public health, safety, and security.” Two weeks ago, the case moved forward again: the Court of Appeals for the Fifth Circuit agreed with Doughty that the White House, the surgeon general, the Centers for Disease Control and Prevention, and the FBI coerced the platforms into suppressing speech, and that this was a violation of the First Amendment.

Although the appeals court upheld the general thrust of Doughty’s decision, however, it didn’t agree with a number of the restrictions he imposed. Of the ten specific prohibitions on government behavior, the Fifth Circuit threw out nine as being too broad, and modified the tenth, according to the Washington Post, limiting it to efforts to “coerce or significantly encourage social media companies to remove, delete, suppress, or reduce…posted social media content containing protected free speech.” The appeals court also said that Doughty erred by including the State Department and a number of other agencies in his injunction, when there was no evidence that they had coerced any platforms.

If Doughty’s opinion was widely, if not universally, criticized by observers, some legal experts were less troubled by the Fifth Circuit’s order, since it functioned mostly as a reminder for the government to stop short of coercion when recommending that the platforms remove certain kinds of content. David Greene, an attorney with the Electronic Frontier Foundation, told the Post that the Fifth Circuit’s version was “a thousand times better” than Doughty’s, while Mike Masnick of Techdirt—a vocal critic of the original ruling—called the decision a “thorough and careful analysis of the standards for when the government steps over the line in violating the First Amendment rights by pressuring speech suppression.”

The Biden administration, however, was still not satisfied: last week, Elizabeth Prelogar, the solicitor general, asked the Supreme Court to block the order, calling it “unprecedented” and saying that it should not be allowed to stand. One of the cornerstones of presidential power, Prelogar argued, is the ability to “seek to persuade Americans—and American companies—to act in ways that the president believes would advance the public interest,” and the injunction, she wrote, would impose “grave and irreparable harms” on both the government and the public. Prelogar asked that the order be paused to allow the government to file a formal request for the Supreme Court to adjudicate the matter. In response, Justice Samuel Alito agreed to put the Fifth Circuit’s order on hold. That will expire tomorrow.

What happens next remains to be seen. The Supreme Court could decide to pause the order permanently, until it has a chance to decide whether to hear the Justice Department’s petition to open a case into the matter. Or it could make use of a shortcut that some court-watchers have referred to as the “shadow docket”—taking the Biden administration’s request for a stay of the order as an official petition to hear the case, then granting that petition at the same time as it stays the order, which would allow the court to hear the case a lot sooner. Prelogar recommended this in her request for a pause, suggesting that the court could do so if it wished to “further expedite matters.”

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The wisdom of this request—both from the government’s point of view and the broader vantage of the public interest—is open to question. Evelyn Douek, an assistant professor of law at Stanford University, told the Post that the case is a “strong candidate for the Supreme Court to weigh in, given the law isn’t clear [and] the issues are so important.” She added that the Fifth Circuit decision “lumps together lots of different kinds of government speech in a way that papers over a lot of nuance.” Masnick, however, argued that there’s a real risk the court could arrive at a decision that is much worse than the Fifth Circuit’s stripped-down injunction. “I guess, in the long run, it’s better to have a full ruling on this issue from the Supreme Court,” Masnick wrote. “I’m just scared of what this particular Supreme Court will say.”

Masnick and others are concerned, in part, because the behavior of this court and its justices in a number of other recent cases has suggested that it is willing to question—and even throw out—long-standing legal precedents, including protections afforded by the First Amendment. A year ago, for example, I wrote about a request for the court to block a Texas law preventing platforms such as Meta from exercising their First Amendment right to remove certain kinds of content. In his decision, Alito wrote that it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

Justice Clarence Thomas, meanwhile, has made comments suggesting that he is open to questioning the social platforms‘ control of information, and how (or if) the law protects it. In a decision last year, Thomas argued that defining a private company as a “common carrier,” a status that comes with extra responsibilities around the flow of information, may be justified when a business becomes large or dominant enough to be “of public concern,” and suggested that some platforms may have reached that point already. The current “control of so much speech in the hands of a few private parties” is unprecedented, Thomas wrote, and so the court would soon “have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure.” (Justice Thomas and Justice Neil Gorsuch have also both recently questioned the legal foundation of New York Times v. Sullivan, the landmark case that offers news organizations strengthened First Amendment protections in libel cases.)

Many observers believe that the Supreme Court will decide to hear the Biden administration’s appeal of the Fifth Circuit’s order. But even if it doesn’t, we might get another chance to see how (or whether) the court believes laws like the First Amendment apply to the platforms. By the end of this month, the court is expected to say whether it will hear two conflicting cases on the topic. The first revolves around the Texas social media law that blocks the platforms from removing certain types of content; the Fifth Circuit upheld that law, ruling that the First Amendment doesn’t apply to content-moderation decisions. The second revolves around a similar Florida law—which the Eleventh Circuit Court of Appeals struck down on the grounds that the First Amendment does protect such activity.

Theoretically, it’s possible that the Supreme Court could decide that the First Amendment prevents the government from telling the platforms to remove content, but doesn’t protect the platforms from the consequences of removing content of their own accord. The only thing that has become clear from previous court rulings and commentary on the topic is that almost no outcome is outside the realm of possibility. Over to you, SCOTUS.

Other notable stories:

  • According to Mediaite’s Diana Falzone and Aidan McLaughlin, the right-wing sting group Project Veritas has laid off six staffers and paused its operations altogether as it confronts a funding crunch; a former staffer told Mediaite that the group now has as few as eleven people on its payroll, while a leader told colleagues yesterday that its future is at stake. Veritas ousted James O’Keefe, its founder, amid turmoil earlier this year.
  • Semafor’s Max Tani reports that The City, a nonprofit news site in New York, is looking to cut costs as it struggles financially. In other local-news news, Billy Kobin, of the Bangor Daily News, dug into a report by Tani on liberal billionaires’ funding of a recent nonprofit takeover of a newspaper chain in Maine. And the Agora Journalism Center at the University of Oregon is out with a new manifesto for community-centered journalism.
  • Recently, we wrote about an unlikely delegation of Australian lawmakers descending on DC this week to lobby for the freedom of the jailed WikiLeaks founder Julian Assange, who faces extradition to the US, on press-freedom and other grounds. On Tuesday, the delegation and dozens of colleagues placed an ad in the Post; yesterday, they held a press conference and said that their early meetings in the US have been “encouraging.”
  • In France, police searched the home of Ariane Lavrilleux—a reporter for the investigative site Disclose who, in 2021, wrote about classified documents showing that Egypt used French intelligence to bomb suspected smugglers at the Libyan border—then took her in for questioning by intelligence agents. She was eventually released. Groups inside and outside France condemned her detention as a brazen assault on press freedom.
  • And—after a baseball columnist received a mysterious text that turned out to be from a writer for a betting site, asking who he was picking as the National League’s MVP—the Journal’s Jared Diamond explored the ethical minefield facing reporters as sports betting explodes in the US. Journalists have access to insider information but currently face few restrictions on their betting activity. (CJR’s Betsy Morais wrote about betting last month.)

ICYMI: The Guardian’s Rob Evans on the undercover abuses of British police 

Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.