The case is Murthy v. Missouri, a suit brought in federal court in Monroe, Louisiana by a number of states, including Louisiana. The basis of the suit involves states and individuals whose Covid posts were censored who then sued federal government officials for violating their free speech rights. Lower courts had ruled in favor of these plaintiffs, finding that certain government officials had pressured social media platforms to censor and suppress their posts.
The legal question is one regarding freedom of speech and how these enormous social media sites choose to “moderate”—in fact, censor—the content of speech and whether, either by their own doing or as a result of pressure from the federal government, or both, these tech giants are suppressing certain speech—which is virtually always conservative speech.
These “communications” reflect active coordination between Facebook and U.S. government officials, including high-ranking White House officials. In one example, after Pres. Biden claimed that social media sites and “Covid misinformation” were resulting in “killing people,” a staffer at Meta (a Facebook spinoff) sent an email to U.S. Surgeon General Vivek Murthy, which stated “it’s not great to be accused of killing people” but Meta was committed to finding “a way to de-escalate and work together collaboratively.”
Other such “communications” (i.e., threats) include former White House director of digital strategy Rob Flaherty and Covid adviser Andy Slavitt who “flagged posts for removal to social media employees and berated them if they didn’t follow orders.” (Wall Street Journal, 3-1824). Flaherty further stated that he “also blamed Facebook for the Jan 6, 2021 riot and said it would be blamed for Covid deaths if it didn’t increase censorship.”
Wow. WSJ further noted that “officials reinforced these private lashings with public threats” including those of former White House press secretary Jen Psaki who stated that platforms could face “legal consequences” if they didn’t censor vaccine misinformation. In keeping with the Psaki threats, more than one Biden official strongly suggested the possibility of antitrust litigation brought against the platforms by the Department of Justice as well as removing Section 230 liability protections.
This incestuous relationship between the federal government and Facebook/Big Tech creates a toxic coordination between government and huge social media sites to suppress critical information the public needs to make well-informed decisions. That’s irrefutable censorship of free speech. The Biden Administration claims these threats are simply “jawboning”— government speech intended to persuade and inform that is protected by the 1st Amendment. That’s laughable. The U.S. 5th Circuit didn’t buy it concluding that Biden officials “weren’t merely out to persuade” but had instead “crossed the line by using threats of legal action.” (WSJ, Id).
The greatest virtue of free speech is that all kinds of ideas are thrust into the rough and tumble of the “marketplace of ideas” where the best idea prevails and leads the nation to wise policy results on challenging national issues. That obviously cannot occur if certain speech is censored and suppressed.
Well, after arguments before the Supreme Court and the questions of several Justices, I am concerned. Several justices reflected in their questions a view of free speech antithetical to that expressed by the Founding Fathers and reflected in the Constitution— that the 1st Amendment is a limit on the Government’s power to ‘abridge’ or censor free speech.
This unconstitutional view was articulated most clearly by Justice Jackson in her questioning but the socalled conservative Justices, including Kavanaugh and Roberts, also seemed to be leaning in the direction of supporting government censorship of free speech. Justice Jackson expressed concern that ‘the First Amendment will hamstring the government in significant ways in the most important time periods.” She seems to have forgotten in her Constitutional Law class that “hamstringing” the federal government— beginning with that of the government of King George III—is exactly the reason why freedom of speech is the first Amendment in the Bill of Rights.
One of our most important constitutional principles is that the government cannot force private parties to do what the government is prohibited from doing on its own. Congress could not directly pass a law suppressing speech by American citizens about Covid. The law would be struck down immediately as a violation of the 1st Amendment. Well, neither can the government force Facebook and the other huge social media platforms to suppress speech. I hope the Supreme Court powerfully reaffirms that principle in this case.
