Supreme Court rules that US government can continue to negotiate with social media companies

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Today, the Supreme Court ruled by a 6-3 majority that plaintiffs who sued the U.S. government for allegedly violating the First Amendment by restricting communication from social media companies about deceptive and harmful content on their platforms did not present sufficient evidence to prove they had the right to sue.

The case was brought by the attorneys general of Louisiana and Missouri, who alleged that government agencies exerted undue influence over the platforms’ content moderation practices and forced the platforms to remove conservative-leaning content, which violated their citizens’ First Amendment rights. Specifically, the case alleged that government agencies such as the Centers for Disease Control (CDC) and the Cybersecurity and Infrastructure Security Agency (CISA) forced social media companies to remove content that included posts critical of the use of masks in preventing COVID-19 and posts questioning the legitimacy of the 2020 election.

In a May 2022 statement, Missouri Attorney General Eric Schmitt alleged that members of the Biden administration “colluded with social media companies like Meta, Twitter, and YouTube to remove true information related to the lab-leak theory, the efficacy of masks, the integrity of the election, and more.” Last year, a federal judge issued an injunction that barred the government from communicating with social media platforms.

Today, the court said the plaintiffs could not prove that communications between the Biden administration and social media companies “directly resulted in harm’s way by censorship.” Murtha v. MissouriJustice Amy Coney Barrett wrote that “the evidence indicates that platforms had independent incentives to moderate content and often made their own decisions.”

While it is the government’s responsibility to ensure it stays away from jabbing — the practice in which governments and leaders appeal to the public in an attempt to influence the behavior of private companies, and in ways that potentially violate free speech — Kate Ruane, director of the Free Expression Project at the Center for Democracy and Technology, says there are very legitimate reasons why government agencies might need to communicate with platforms.

“Communication between the government, social media platforms and government entities is important in providing information that social media companies can use to make sure that social media users have authoritative information about where they should go to vote, or what to do in an emergency, or all those kinds of things,” she says. “It’s very useful for the government to partner with social media to get accurate information.”

Google and Meta declined to comment on the matter.

David Green, civil liberties director at the Electronic Frontier Foundation, says the court ruled in a case earlier this cycle that National Rifle Association v. Vullo Perhaps this was a sign of how this would progress statue Decision. In the Vulllo case, the NRA alleged that Maria Vulllo, superintendent of the New York Department of Financial Services, threatened “enforcement actions” to pressure banks and insurance companies not to do business with the NRA and suppress the organization’s advocacy. In a 9-0 decision, the court ruled that the NRA had presented sufficient evidence that the case against Vulllo could proceed. In the opinion, Justice Sonia Sotomore wrote that the NRA’s complaint “plausibly alleges that Vulllo threatened to use her power against those who refused to assist in her campaign to punish the NRA’s gun-promotion advocacy.”

In statueHowever, the judges found that the plaintiffs had not presented sufficient evidence to show that the government had used similar tactics to pressure platforms to make content moderation decisions.

“Apart from the fact that the facts involved are politically motivated, the legal issue is not something that I think is traditionally resolved on a partisan basis,” Green says.

But Green says that without clear guidelines, state, local and federal government bodies — of all political leanings — may now feel free to approach the platforms. “We’ll see more of this kind of government involvement in these processes,” he says.

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