WASHINGTON (CN) — The Biden administration heads to the Supreme Court next week to defend its use of the bully pulpit against misinformation online.
Citing the actions of previous administrations, the government argues it has a right to influence the public on issues of the day. President Theodore Roosevelt criticized news coverage of sensational political scandals while President Ronald Reagan called for actions on drug use. President George W. Bush used his authority to denounce pornography.
The Biden administration said its relationship with social media companies similarly pushed the president’s agenda on vaccines and election misinformation.
“The government '"is entitled to say what it wishes" and to select the views that it wants to express’ free from 'First Amendment scrutiny,'” U.S. Solicitor General Elizabeth Prelogar wrote. “Indeed, it is often ‘the very business of government to favor and disfavor points of view.’”
Republican-led states and social media users do not share the same view. They equate the administration’s conduct to a coordinated pressure campaign seeking to coerce social media giants to censor speech the government didn’t like.
The case follows a theme from this term, probing what the government can and can not do to control online speech. The justices recently reviewed laws from Texas and Florida that would require social media companies to host speech they disagree with. Earlier this term, the court questioned whether public officials can block their constituents.
On Monday, the justices will be focused on whether the Biden administration’s communications with private social media companies transformed the platform’s content moderation decisions into state action, violating the First Amendment.
Public health crisis
Missouri, Louisiana and the social media users claim that the Biden administration pressured platforms to censor the most effective critics of the government’s viewpoints. The bulk of these claims involve vaccine and election misinformation. Prominent vaccine skeptic Alex Berenson is one individual the lawsuit claims was censored.
In July 2021, the White House held a press conference declaring health misinformation an urgent public health crisis. One of the administration’s actions to combat this issue was asking technology companies to monitor misinformation more closely and take steps against misinformation super-spreaders.
The White House said it regularly contacted social media platforms to flag problematic posts.
President Joe Biden followed up that message by stating that social media platforms were “killing people” because “the only pandemic we have is among the unvaccinated.” He later clarified the comments saying he hoped the platforms would act to save lives.
The social media platform X, formerly Twitter, suspended Berenson’s account hours after Biden’s statement. His last post claimed vaccines did not stop infection nor transmission of Covid-19 and called vaccine mandates “insanity.” The platform said it banned Berenson for repeated violations of its Covid-19 misinformation rules.
In addition to Berenson, the states and users point to Robert F. Kennedy Jr. was kicked off Instagram for spreading disinformation about the side effects of the Covid-19 vaccine and YouTube removed a video posted by the Louisiana Department of Justice criticizing mask mandates and lockdown measures.
“This court recently cautioned that ‘the government-speech doctrine’ is ‘susceptible to dangerous misuse,’ and could allow ‘government [to] silence or muffle the expression of disfavored viewpoints,’” wrote Elizabeth Murrill, Louisiana’s attorney general. “That is what the government is doing here.”
A federal judge ordered the White House and 67 federal entities to halt communications with social media companies. The Fifth Circuit narrowed the ruling but upheld some limits on government communications with platforms. The Supreme Court agreed to pause the lower court’s rulings and hear arguments in the case.
Supreme Court implications
The Biden administration argues its communications with platforms aimed at informing and persuading rather than compelling and says the government can't be held responsible for private actions without having exerted coercion.
For example, the government says it routinely encourages young men and women to enlist in the armed forces — but encouraging enlistment doesn’t force people to serve.
Without the ability to advocate for its positions, the government claims administrations would lose the power of the bully pulpit. The government points to the FBI’s ability to address national security threats or the Centers for Disease Control and Prevention's announcements on public health information.
The states and users counter that administration officials used veiled threats to force platforms to remove their posts.
“Having conspired with platforms to deprive Americans of their First Amendment rights, defendants are responsible for all actions that platforms took in furtherance of the conspiracy,” Murrill wrote.
Social media companies and First Amendment advocates weighed in on the case, expressing caution over government interference with online speech. Electronic Frontier Foundation Civil Liberties Director David Greene urged the justices to independently review the record to create distinctions between government coercion and government advocacy.
“Government co-option of content moderation systems is a serious threat to freedom of speech,” Greene wrote in a statement. “But there are clearly times when it is permissible, appropriate, and even good public policy for government agencies and officials to inform, communicate with, attempt to persuade, or even criticize sites — free of coercion — about the user speech they publish.”
Civil rights groups characterized disinformation as a threat to the fabric of democracy and encouraged the court to allow information sharing between platforms government agencies, voting rights organizations, and social media companies.
“Social media companies’ content policies prohibiting disinformation therefore play a vital role in preserving free and fair elections,” the groups wrote in an amicus brief. “Information sharing between and among government agencies, voting rights organizations, and social media companies is crucial in guarding against emerging threats, particularly to vulnerable communities.”
Multiple health organizations said the government had a compelling interest in fighting anti-vaccine information online, stating that the drugs save lives and suggestions otherwise are offensive and disagreeable.
“Studies have shown that misinformation on this topic can decrease vaccine uptake, which in turn diminishes vaccines’ ability to control the spread of disease and reduces the number of lives saved,” the health organizations wrote in an amicus brief. “This gives rise to the government’s compelling interest in this case: combatting vaccine misinformation is, at its simplest, the government trying to prevent factually incorrect statements from costing people their lives.”
The justices will hear arguments on March 18 and issue a ruling by the end of June.
Follow @KelseyReichmann
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