The Supreme Court on Monday is taking up a dispute between Republican-led states and the Biden administration over how far the federal government can reach to combat controversial social media posts on topics including COVID-19 and election security.
The justices are hearing arguments in a lawsuit filed by multiple parties including Louisiana and Missouri, who are accusing officials in the Democratic administration of leaning on the social media platforms to unconstitutionally squelch conservative points of view. The lower courts have sided with the plaintiffs, but the Supreme Court blocked the rulings while it considers the issue.
The states argue that White House communications staffers, the surgeon general, the FBI and the U.S. cybersecurity agency are among those who coerced changes in online content on Facebook, X (formerly Twitter) and other media platforms.
“It’s a very, very threatening thing when the federal government uses the power and authority of the government to block people from exercising their freedom of speech,” Louisiana Attorney General Liz Murrill said in a video her office posted online.
The Biden administration maintains that none of the actions the states complain about come close to problematic coercion. They claim the states “still have not identified any instance in which any government official sought to coerce a platform’s editorial decisions with a threat of adverse government action,” wrote Solicitor General Elizabeth Prelogar, the administration's top Supreme Court lawyer. Prelogar wrote that states also can't “point to any evidence that the government ever imposed any sanction when the platforms declined to moderate content the government had flagged — as routinely occurred.”
The social media companies affected are not involved in the case.
Judges on the New Orleans-based 5th U.S. Circuit Court of Appeals had previously ruled that the Biden administration had probably brought unconstitutional pressure on the media platforms. The appellate panel said officials cannot attempt to “coerce or significantly encourage” changes in online content. The panel had previously narrowed a more sweeping order from a federal judge, who wanted more government officials involved and to prohibit mere encouragement of content changes.
A divided Supreme Court put the 5th Circuit ruling on hold in October, when it agreed to take up the case. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas would have rejected the emergency appeal from the Biden administration.
Alito wrote in dissent in October: “At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate."
A decision in Murthy v. Missouri, 23-411, is expected by early summer.