Posted on June 26, 2024

US Supreme Court Allows Government to Request Removal of Misinformation on Social Media

Nick Robins-Early, The Guardian, June 26, 2024

The US supreme court has struck down a lower court ruling in the case of Murthy v Missouri, in a decision that did not find the government’s communications with social media platforms about Covid-19 misinformation violated the first amendment. The court’s decision permits the government to call on tech companies to remove falsehoods, a key concern as misinformation spreads around this year’s presidential election.

The court ruled 6-3 that the plaintiffs had no standing to bring the case against the Biden administration, with conservative justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissenting. Although many of the arguments in the case centered on how governments and platforms interact with free speech online, the ruling focused more on procedural issues and a lack of legal grounds to bring the case.

“The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics,” conservative justice Amy Coney Barrett wrote. “This court’s standing doctrine prevents us from ‘exercis[ing such] general legal oversight’ of the other branches of government.”

The ruling is a win for the Biden administration and a blow to a longstanding Republican-backed effort to equate content moderation with censorship. Plaintiffs in the lawsuit, which included the founder of a far-right conspiracy website, argued that the government and federal agencies were coercing tech companies into silencing conservatives through demands to take down misinformation about the pandemic.

An initial lower court ruling from a Republican-favorite judge in Louisiana accused federal agencies of taking on the role of “an Orwellian ‘Ministry of Truth’”. The US court of appeals for the fifth circuit partly affirmed that decision, stating that the Biden administration was responsible for platforms taking down content, and issued a sweeping injunction preventing communications between the government and tech companies.

The supreme court, in a decision written by Barrett, ruled that “the fifth circuit was wrong” in its conclusions. The court found that the plaintiffs failed to demonstrate that they faced substantial risk of harm from the government.

Alito wrote the dissent, alleging that “for months, high-ranking government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech”. Alito argued that the court’s ruling provides “an attractive model for future officials who want to control what the people say, hear and think”.

During oral arguments, the government contended that calling on social media platforms to take stronger measures against misinformation did not amount to threats and never implied legal consequences. Public health experts and state officials had warned that blocking the government from flagging medical misinformation or election falsehoods could cause serious societal harm.

Benjamin Aguiñaga, the solicitor general of Louisiana, spoke on behalf of the plaintiffs during the oral arguments in March. He faced heavy criticism from several justices over what they described as factual inaccuracies and misrepresentations in the plaintiffs’ case, with Justice Sonia Sotomayor telling him: “I have such a problem with your brief, counselor.”

Barrett’s decision found that the lower court ruling “glossed over complexities in the evidence” and “also erred by treating the defendants, plaintiffs and platforms each as a unified whole”.