The U.S. Supreme Court is scheduled to hear arguments Monday about the role of the First Amendment in the Internet age.
Katie Dull/NPR
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Katie Dull/NPR
The U.S. Supreme Court is scheduled to hear arguments Monday about the role of the First Amendment in the Internet age.
Katie Dull/NPR
In a major case questioning the role of the First Amendment in the Internet age, the U.S. Supreme Court on Monday focused on the federal government's ability to combat what it deems to be false, misleading, or dangerous information online. The court will hear the arguments filed by the court.
Last September, the 5th Circuit Court of Appeals, the most conservative federal appeals court in the United States, issued a sweeping ruling barring key government officials from contacting social media companies. Officials targeted by the order included those from the White House, Centers for Disease Control and Prevention, Surgeon General, FBI, and key cybersecurity agencies.
The appeals court found that officials at these agencies violated the U.S. Constitution in an attempt to force social media platforms to adjust or change their content about the coronavirus, foreign election interference, and even Hunter Biden's laptop. He said it was likely a violation of the First Amendment. The Supreme Court put its decision on hold while considering the difficult issues in the case.
facts of the incident
The plaintiffs in the lawsuit are from two states, Missouri and Louisiana, and five individuals, including anti-vaccine opponents who were banned from some internet platforms or whose posts received no attention during the height of the COVID-19 pandemic. be. Social media sites such as Facebook, YouTube, and X (formerly Twitter).
The Biden administration has noted that, based on established First Amendment precedent, the government has the right to express its own views and try to persuade others. As the government stated in its brief, “A central aspect of presidential power is the use of the president's bullish pulpit to urge Americans, and American businesses, to act in ways that advance the public interest.” It's about trying to persuade.”
Opponents of the administration argue that the bully's pulpit is “not a pulpit for bullying.''
Jenin Younes, who represents individuals who say they have been censored, argues that the government is essentially using social media companies as proxies to censor speech. And she argues that it is an unconstitutional act of the state.
“We're talking about the government going after all the major platforms and trying to force them to…censor every point of view,” she says.
The government notes that officials from both Republican and Democratic administrations regularly interact with social media companies. In fact, from the beginning of the pandemic during the Trump administration, companies themselves reached out to government health agencies for guidance on what medical information is trustworthy and what is not.
Kathryn Ruemmler, a former adviser to President Obama, said she was particularly struck by the lower court's opinion in the case because “the vast majority of these interactions between government officials and social media companies… This is because there was no awareness that it was related to the National Public Service Act.” global health crisis. ”
“If you think about what the purpose of government is, why does it exist? It's really to protect the health and safety and well-being of its people,” she said during a panel discussion at New York University School of Law.
How governments interact with social media companies
The government has made similar claims about the FBI and other agencies' dealings with social media companies. Andrew Wiseman, a former FBI general counsel, points out that private companies and the government typically benefit from this type of interaction.
“Suppose someone at the Pentagon identifies the location and address of a State Department employee overseas and alerts them to information about a terrorist group that is calling for violence against that individual,” Wiseman said. FBI General Counsel warns social media companies and says they will have the following conversations: Of course, that's your decision, but I'm sure you can understand why…we have serious concerns. ”
Wiseman says that in most cases, social media companies appreciate the information and remove posts for the following reasons: do It violated company policy, but was missed by the company's algorithm. Social Media No algorithm is perfect, he observes, as his platforms receive billions, even trillions of posts from around the world every day.
Has speech been censored?
In this case, it's not the other person's drawing. They claim their speech was censored. Two of the plaintiffs are epidemiologists who argue that instead of imposing lockdowns, masks and other measures taken by both the Trump and Biden administrations, they exposed most people to COVID-19 to establish herd immunity. was claiming. The CDC maintains that there is no herd immunity for viruses like the coronavirus that causes COVID-19, which constantly morphs and mutates.
But the plaintiffs in the case produced dozens of quotes from government emails that they say prove the government's coercive actions.
“If you read between the lines, what was happening was that companies were feeling a lot of pressure from the White House, and they were bowing to that pressure. And as a result of that pressure, certain views were getting censored. ” argued lawyer Younes.
Rümmler, a former White House general counsel, said that is “ridiculous in a way,” noting that the president cannot eliminate existing legal protections for social media companies. Only Congress can do that.
Colin Stretch, Facebook's former general counsel, agrees that the idea of a social media platform bowing to government officials is far-fetched.
“These are big companies. They're not easily intimidated,” he said, adding that public policy always has competing political imperatives. “That's big league life,” he said at New York University.
Strong government response
The Biden administration has refuted the plaintiffs' allegations of coercion in unusually strong terms. “If you look at the government's brief, they don't use the L-word, 'lying,' but they do everything else,” said Wiseman, a former FBI adviser.
In one example, the government is rebutting a coercion claim brought by a lower court based on an email from the White House to Facebook. “Are you guys serious?'' The email said, “I want you to answer what happened here. I want you to give me an answer today.'' The government says it sounds bad until you learn that the “apparently crude email” “was about a technical issue impacting society.” The president's own Instagram account— had nothing to do with moderating other users' content. ”
In addition to the vast factual issues in this case, there are also questions about how courts should treat social media companies under the First Amendment, and whether the Supreme Court or Congress should decide on their regulatory policies. There is a fundamental difference of opinion as to whether
Ryan Goodman, a law professor at New York University, said there are “no clear partisan lines” in Monday's incident. It also doesn't take a genius to figure out that some politicians have a convenient way of switching sides depending on the content of the speech in question.
Missouri Attorney General Andrew Bailey, for example, filed the lawsuit accusing the Biden administration of “perhaps…the most extensive attack on free speech in American history.” But at the same time, he threatened legal action against Target for selling LGBTQ-themed T-shirts and other merchandise as part of the Pride campaign.
What social media companies say
None of the social media companies are parties to Monday's Supreme Court case, but like other media companies, their speech and choices about what to allow on their platforms are protected by the First Amendment. continues to claim that it is. Those who challenge this status argue that social media companies are akin to public utilities.they are hosts someone else's Therefore, they do not have the same First Amendment protections as newspapers and broadcast stations.
Presidents and members of Congress of both parties can and do say a lot of terrible things about social media companies in public. Jameel Jaffer, executive director of the Knight First Amendment Institute, said it's private communications that make critics suspicious.
“It may be naive to expect social media companies to be reliable agents of the speech interests of their users,” he said at New York University.
However, the line that courts have so far drawn is the line between persuasion and coercion. Sounds simple, but as Jaffer observes, “enforcing the rules is much more difficult than explaining what the rules are.”
It is unclear where the Supreme Court justices will stand on this and other social media questions before the court this term. But in this case, the court's three most conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch, suspended the lower court's ruling while the case was before the high court. I wouldn't have done it. They would have let it take effect.
Independent First Amendment Litigation
After the court concludes arguments in the social media case on Monday, it will move on to a second case involving government influence and the First Amendment. The National Rifle Association has filed a lawsuit against the former head of the New York State Department of Financial Services.
The NRA said the Department of Financial Services issued letters and news releases discouraging financial institutions from doing business with gun rights groups, violating the NRA's free speech rights during the agency's investigation into so-called “murder insurance.” he accused. “Homicide insurance” is a derogatory term for insurance that covers the costs of shooting someone with a firearm, and is illegal in New York state. The U.S. Court of Appeals for the Second Circuit rejected the NRA's lawsuit, concluding that the news release and letter were proper government speech, and the NRA appealed to the Supreme Court.
