The US Supreme Court has ruled on controversial attempt by two states, Missouri and Louisiana, to limit Biden Administration officials and other government agencies from engaging with workers at social media companies about misinformation, election interference and other policies. Rather than set new guidelines on acceptable communication between these parties, the Court held that the plaintiffs lacked standing to bring the issue at all.
In Murthy, the states (as well as five individual social media users) alleged that, in the midst of the COVID pandemic and the 2020 election, officials at the CDC, FBI and other government agencies “pressured” Meta, Twitter and Google “to censor their speech in violation of the First Amendment.”
The Court wrote, in an opinion authored by Justice Barrett, that “the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. Here, at the preliminary injunction stage, they must show that they are likely to succeed in carrying that burden.” She went on to describe this as “a tall order.”
Though a Louisiana District Court order blocking contact between social media companies and Biden Administration officials has been on hold, the case has still had a significant impact on relationships between these parties. Last year, Meta revealed that its security researchers were no longer receiving their usual briefings from the FBI or CISA (Cybersecurity and Infrastructure Security Agency) regarding foreign election interference. FBI officials had also warned that there were instances in which they discovered election interference attempts but didn’t warn social media companies due to additional layers of legal scrutiny implemented following the lawsuit. With today’s ruling it seems possible such contact might now be allowed to continue.
In part, it seems the Court was reluctant to rule on the case because of the potential for far-reaching First Amendment implications. Among the arguments made by the Plaintiffs was an assertion of a “right to listen” theory, that social media users have a Constitutional right to engage with content. “This theory is startlingly broad,” Barrett wrote, “as it would grant all social-media users the right to sue over someone else’s censorship.” The opinion was joined by Justices Roberts, Sotomayor, Kagan, Kavanaugh and Jackson. Justice Alito dissented, and was joined by Justices Thomas and Gorsuch.
The case was one of a handful involving free speech and social media to come before the Supreme Court this term. The court is also set to rule on two linked cases involving state laws from Texas and Florida that could upend the way social media companies handle content moderation.
