The Supreme Court granted a stay in October in a case that will determine the future of content moderation in the United States.
Missouri v. Biden is the culminating case originating from free speech complaints issued by the states of Louisiana and Missouri against individuals within the Biden administration for their treatment of social media companies during the Covid-19 pandemic. The petitioners claim that the Biden administration unfairly hounded social media companies to alter their content moderation policies to combat Covid-19 misinformation, a step that they say amounted to unconstitutional censorship. The Supreme Court must decide that the Biden administration’s actions were constitutionally protected; otherwise, they risk neutering the use of the bully pulpit for the public good in health crises.
In a previous injunction by the Fifth Circuit, the lower court ruled that the government can communicate with social media companies by telling them to “be on the lookout” for misinformation or certain types of posts. While the Supreme Court permitted a stay on this injunction, it simultaneously granted a writ of certiorari, guaranteeing that the case will be heard within the next two terms.
The Court grants certiorari when there is a constitutional question that remains unanswered or must be revisited. The actions by the Biden administration constitute the former, as questions concerning content moderation and social media have not come before the Court frequently.
According to the opinion issued by the Fifth Circuit, social media companies, such as Facebook and Twitter, gave government officials access to information about flagged posts and de-platformed users. These companies made tangible changes to their content moderation policies, creating more flagged posts in certain content areas, such as the Wuhan lab leak theory. The government also nudged Facebook to start removing posts by the “disinfo dozen,” a group of 12 accounts that make up the majority of Covid-19 vaccine misinformation. Facebook had previously decided that their posts did not violate its user policy.
While the Court has ruled on a couple of Section 230 cases, such as Gonzalez v. Google, the Biden case highlights something distinct: First Amendment issues with government coercion of social media companies. Section 230 cases focus on the Communications Decency Act, which shields social media companies from legal liability regarding most content posted on their sites. Gonzalez v. Google saw the Court punt on the question of corporate liability for algorithmic learning in recommending content, refusing to limit the scope of Section 230.
Missouri v. Biden begs the question: Where is the line between request and coercion?
The Biden administration claims that social media companies acted independently to alter their content moderation policies after meetings with government officials. They argue that there is a difference between coercion and request; they worked with social media companies to better moderate posts related to Covid-19 misinformation, contributing to the public good. The government requesting changes from these companies is constitutionally protected government speech.
However, the petitioners argue that the actions of the Biden administration amount to coercion because the government has inherent power over social media companies. This power comes in the form of antitrust lawsuits and Section 230 lawsuits; the executive branch technically possesses the power to come after tech giants such as Google and Facebook on antitrust grounds, as these companies dominate such a large market share. They can also hurt these companies by litigating Section 230 violations through the Department of Justice, which could open tech companies up to liability for their content moderation strategies.
Therefore, the petitioners contend that it would be impossible for tech companies to operate independently with the government’s request as the government holds regulatory power over them. Any request the government makes is inherently coercive due to threats of stronger regulatory oversight.
Where should the Supreme Court go from here?
This case hinges on the Supreme Court’s analysis of First Amendment freedoms concerning censorship of constitutionally protected speech from users on social media platforms. It is important to note that most lies are constitutionally protected speech in the context of social media misinformation. These companies can choose to moderate them without First Amendment violations; the controversy comes when the government requests moderation.
Nevertheless, the Supreme Court should decide in favor of Biden. The bully pulpit is a powerful tool and should be protected; if they decide in favor of Missouri, they will dampen the ability of the government to work together with social media. The bully pulpit is vitally important in creating a platform on issues of public importance. Theodore Roosevelt coined the term to describe how the presidency has a pulpit to advance a platform to the public. Social media is a critical battleground in the war for information dissemination and the government needs to be able to communicate with these companies to protect citizens. Especially in a public health crisis, coordinating with these companies to stop the spread of misinformation is a critical step to saving lives. For example, individuals are less likely to get vaccinated when exposed to multiple sources of misinformation, with an observed drop of 20 percent.
The petitioners overstate the importance of the power imbalance between the government and the private sector. The executive branch cannot unilaterally strike down these companies with antitrust legislation, as the courts would still be able to weigh in.
There is also a normative argument for protecting citizens. Social media companies should work with the government not because they fear regulation, but because they care about not contributing to or worsening public health crises. Through this lens, government coordination does not seem coercive, but rather cooperative in providing the public with crucial information regarding crises affecting the country. At the same time, social media companies should not face punishment for refusing government requests, and there is little to no proof that they did during the Covid-19 pandemic. The idea that the government is privately laundering censorship through companies is ludicrous, as social media companies have their own incentive structures separate from the executive branch.
When the Supreme Court decides Missouri v. Biden, it will have monumental effects on the future of the government’s ability to communicate with social media platforms. If they side with Missouri, it will only harm the ability for cooperation between the government and social media companies. It could also result in even greater amounts of misinformation during future public crises or pandemics. The Court should rule on the side of caution and protect the executive branch’s ability to leverage the bully pulpit.