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Informed Citizens

are Better Citizens

by Michael Barbella

Is Covid-19 and election integrity misinformation legally protected by the First Amendment? That is the question the U.S. Supreme Court is currently grappling with, courtesy of a lawsuit that accuses the federal government of suppressing free speech by coercing social media companies to take down posts that promote misinformation.

A report written by the Congressional Research Service, a nonpartisan public policy research institute within the Library of Congress that works directly with members of Congress, noted that in the past the U.S. Supreme Court “has said the Free Speech Clause protects false speech when viewed as a broad category.” For example, in 2012, the Court struck down a law that made it a criminal offense to lie about receiving military honors, ruling the law violated the First Amendment’s free speech guarantee.

In addition, the report, titled “False Speech and the First Amendment: Constitutional Limits on Regulating Misinformation,” said, “There is a concern that by prohibiting false speech, the government would also ‘chill’ more valuable speech, meaning it would cause people to self-censor out of fear of violating the law.”

Does that concern hold when talking about social media platforms? According to a Pew Research Center 2021 survey, 53% of Americans get at least some news from social media. “Twitter [now called X], Facebook, and TikTok have all become pseudo-news platforms,” the survey stated. In addition, a 2023 study from researchers at the University of Arizona revealed that 40% of medical videos on TikTok contained medical misinformation.

The American Psychological Association (APA), a scientific and professional organization whose membership consists of psychologists, scientists, and educators, defines misinformation as false or inaccurate information or getting the facts wrong. Disinformation, the APA says, is false information which is deliberately intended to mislead—intentionally misstating the facts. In a 2023 report, APA said the spread of misinformation and disinformation on social media has affected the ability to improve public health and maintain a stable democracy.

With respect to Covid-19 misinformation, during the 2020 World Health Organization (WHO) security conference, WHO’s director-general said, “We are not just fighting an epidemic; we are fighting an infodemic,” referring to Covid-19 misinformation spreading faster than the virus. As of January 2024, Covid-19 has been responsible for more than seven million deaths globally, according to WHO.

A 2018 study conducted by researchers at MIT and published in Science, a scientific journal published by the American Association for the Advancement of Science, revealed that rumors spread faster than the truth on social media, finding that falsehoods are “70% more likely to be retweeted.”

The Public Interest Research Group (PIRG) is a non-profit federation of U.S. and Canadian organizations that provide advocacy on such issues as consumer protection and public health.

In a 2023 op-ed on PIRG’s website, R.J. Cross, a policy analyst who focuses on government transparency, wrote, “Having an engaged and informed citizenry depends in no small part on reliable access to accurate information. With social media’s propensity to amplify misinformation, more people accessing news-like content on these platforms may further distort the echo chambers we’re currently grappling with as a country.”

What the lawsuit alleges

The lawsuit—originally Missouri vs. Biden, now Murthy vs. Missouri—was filed in May 2022 by the Attorneys General of Louisiana and Missouri, along with five other plaintiffs, including two epidemiologists who questioned the government’s handling of the pandemic, a professor who was dismissed after refusing to get a Covid vaccine, the director of Health Freedom Louisiana, an organization that has been accused of promoting disinformation, and the founder of a news outlet that spread false information about election fraud.

The complaint accused President Joseph Biden, U.S. Surgeon General Vivek H. Murthy, (former presidential) Chief Medical Advisor Dr. Anthony Fauci, and other top-ranking Biden Administration officials in 11 government agencies with suppressing free speech regarding Covid-19, election integrity and other topics under the guise of combatting “misinformation.”

As Jonathan Hafetz, a professor at Seton Hall University Law School and a constitutional law expert, explains, “The plaintiffs claim that social media companies caved to pressure from the government regarding posting content about various issues. Because the government was effectively ‘pulling the strings,’ they argue, this amounted to government censorship of First Amendment protected speech, even if it was the social media companies that directly suppressed the speech.”

The lawsuit documents an alleged history of free speech suppression by the Biden administration, beginning with his 2020 presidential campaign and continuing through the pandemic. For instance, it references a New York Times interview from January 2020 where Biden, then a candidate running for president, stated that he favored revoking online service providers’ immunity for third-party content and criminally prosecuting social media executives who fail to censor false information.

Attack against free speech

In July 2023, Judge Terry A. Doughty, a U.S. district court judge for the Western District of Louisiana, sided with the plaintiffs and issued a temporary injunction barring all communication by the Biden administration with social media platforms for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”

Judge Doughty listed 22 occasions where White House staff pressured social media companies.

“If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” Judge Doughty wrote. “The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition.”

Thomas Healy, a professor at Seton Hall University School of Law and a free speech expert says, “The danger of allowing the government to police false speech is that it might use that power to silence its critics. It might also be wrong about what is true and what is false. And if it mistakenly punishes true speech, we may never have a chance to see the error of our ways.”

On the other hand, Professor Healy says, “The danger of not allowing the government to police false ideas is that those ideas may spread and cause harm.” He notes that for the past 100 years, American courts have held that the danger of government silencing speech is greater than danger of spreading falsehoods.

In appealing Judge Doughty’s temporary injunction to the U.S. Court of Appeals for the 5th Circuit, the government argued that its online policing protocols are necessary to minimize significant public risks posed by digital communication networks (such as terrorist recruiting, harm to children, and misinformation spread). In its challenge to the injunction, U.S. Department of Justice (DOJ) attorneys noted that American presidents have historically engaged with the media to promote their policies and shape coverage of their administrations. In addition, the DOJ deemed the social media communications ban “vastly overbroad” and claimed it would impose “grave harms” on the public.

The 5th Circuit Court initially granted the Biden administration a temporary stay of the injunction; however, in September 2023, it upheld the lower court ruling in part. The 5th Circuit Court found that some of the communications between the Biden administration and the social media companies in trying to fight alleged Covid-19 misinformation “coerced or significantly encouraged social media platforms to moderate content,” which violated the First Amendment. The 5th Circuit, however, also found the injunction from Judge Doughty was vague, and many of its provisions were “duplicative and thus unnecessary.” The court narrowed the lower court’s injunction to the White House, the Surgeon General’s Office, the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation.

After the 5th Circuit’s ruling, the White House issued a statement.

“This administration has promoted responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections,” the White House statement read. “Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people but make independent choices about the information they present.”

The government appealed the 5th Circuit’s ruling to the U.S. Supreme Court.

Persuasion or coercion?

Central to Murthy v. Missouri is the government’s attempts to control published information about Covid-19 and election interference, and whether those efforts violated the First Amendment. U. S. Department of Justice attorneys acknowledged the government cannot legally order social media companies to remove content but claimed it can “vigorously criticize a publication.” That criticism or attempted embarrassment is considered a constitutional violation only when the government threatens sanction, past D.C. Circuit decisions have held, the DOJ said.

Professor Hafetz says, “An important question in the case will be what crosses the line from government persuasion (which is permissible) to government coercion (which is not).”

Justice Department attorneys criticized the 5th Circuit and appellate courts for failing to distinguish between persuasion and coercion. The government insists it only partnered with social media firms to help root out misinformation, but the courts concluded that this partnering amounted to “unrelenting pressure” to police content.

In the request to the U.S. Supreme Court to block the 5th Circuit Court’s order while the case is on appeal, Solicitor General Elizabeth B. Prelogar wrote, “There is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from finding coercion.”

Professor Healy agrees that there is a distinction between persuasion and coercion.

“The First Amendment does not prohibit the government from taking a position on public policy issues or using the bully pulpit to encourage responsible behavior by corporations,” Professor Healy says. “The question in this case is whether the government crossed the line into coercion by threatening to punish the social media platforms if they didn’t block certain posts. It’s a factual question that the lower courts decided in favor of the plaintiffs. Whether the Supreme Court will agree remains to be seen.”

In October 2023, the U.S. Supreme Court agreed to hear the case and also temporarily lifted the injunction from the 5th Circuit Court, allowing the government to continue communicating with social media companies. Oral arguments before the U.S. Supreme Court are scheduled for March 18 and a ruling is expected by the end of the Court’s term in June.

Discussion Questions

  1. What role do you think social media plays in the spread of misinformation? What obligation do social media platforms have in combatting misinformation?
  2. What possible harms could the spread of misinformation have on the two topics mentioned in the article—Covid-19 and election integrity? Explain your answer in detail.
  3. Should the government have more flexibility to curb misinformation to maintain public safety? Explain your answer.

Glossary Words
— a request that a higher court review the decision of a lower court.
immunity — exempt from penalty.
injunction — an order of the court that compels someone to do something or stops them from doing something.
nonpartisan— not adhering to any established political group or party.
plaintiff — person or persons bringing a civil lawsuit against another person or entity.
upheld — supported; kept the same.

This article originally appeared in the spring 2024 issue of The Legal Eagle.