In September 2023, the Fifth Circuit Court of Appeals entered an injunction against President Biden and many of his top staff, agencies, and appointees. It forbade them from coercing or encouraging social media companies “to remove, delete, suppress, or reduce,[…] posted social-media content containing protected free speech.” However, it was an imposition that Biden couldn’t abide, so it was challenged in oral arguments before the United States Supreme Court on Monday, March 18.
Social Media Solution: Shutdown
Murthy v. Missouri (formerly known as Missouri v. Biden) saw lively discussion, with advocates and justices working through whether top federal officials “transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights.” There was considerable discussion about procedural issues, too, which lack the pizzazz of a genuine free-speech fight yet might control the eventual course of the case.
The Fifth Circuit judges, two George W. Bush appointees, and one Trump pick all agreed to rein in the Biden effort to muzzle Americans. However, it did not seem likely that the Supreme Court members would all agree with the September ruling. There is the issue of whether the administration’s actions regarding social media companies amount to coercion and whether the plaintiffs have standing to sue, amongst others. The prospect that the federal government could be held back from erasing unwanted posts seemed especially troublesome for one jurist.
It’s a Feature, Not a Bug
Justice Ketanji Brown Jackson said, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.” She posited a hypothetical social-media trend where kids were jumping out of windows and injuring themselves. Then Justice Jackson presented the argument that “some” people thought the government “has a duty” to suppress the speech of Americans. Indeed, some do. However, our Constitution and Bill of Rights have no exceptions for emergencies, or “except when acting for the children,” because exceptions would render any protection meaningless.
Justice Jackson’s comment quickly earned a critical response, as it should for people who jealously guard their fundamental liberty.
Justice Brett Kavanaugh said the administration treated the social media companies “like subordinates” and wondered, “Would you do that to the New York Times or The Wall Street Journal or the Associated Press or any other big newspaper or wire service?” Louisiana Solicitor General J. Benjamin Aguinaga argued:
“Behind closed doors, the government badgers the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the White House are concerned, it ominously says that the White House is considering its options, […] all to get the platforms to censor more speech.”
The named plaintiff, Murthy, refers to the Surgeon General of the United States, Dr. Vivek Murthy. According to a federal District Court in Louisiana, “Murthy had meetings with social-media companies, called health misinformation ‘poison,’ and called for social-media companies to do more to control the reach of health disinformation.” Vaccine skeptics were targeted and attacked by Biden administration officials like Murthy – who were then sued by the Republican Attorneys General of Missouri and Louisiana, and other individuals. They won big at the district court, which issued an injunction barring a number of top Biden team members from a list of activities it claimed infringed on Americans’ First Amendment rights.
The Supreme Court on March 18 heard another case about government punishing speech. Instead of Biden and his lieutenants attacking conservative critical speech generally, it was about New York state authorities using their powers to hurt the NRA for its speech. Both cases are expected to be ruled on by June.
