June 26, 2024
The US government *can* still continue to work with social media companies to flag and take down misinformation. And no – that does not violate your first amendment rights…at least not yet.
So says the Supreme Court in a 6-3 ruling written by Justice Amy Coney Barrett and released today. Justices Alito, Thomas and Gorsuch dissented. I’ll explain their position in a second but first….
Five social media users and two states (Louisiana and Missouri) sued the federal government claiming during the pandemic the FBI, CDC, Homeland Security, White House and the Surgeon General – just to name a few — colluded with social media companies to stifle free speech by suppressing or removing Covid19 and election misinformation from social media platforms. The government argued it has worked with social media companies for years to “promote responsible actions to protect public health, safety and security” on the internet. Plus, the government said – in the end, whether to take action on a specific post or account is the decision of the platform based on its own community guidelines.
Well today — the Supreme Court sided with the government. The ruling didn’t even discuss the first amendment question – because the justices found the plaintiffs did not have standing to even bring the case in the first place. The majority opinion goes through each of the plaintiffs and their arguments and says their failures to prove standing are simple and basic — the plaintiffs fail, by and large, to link their past social-media restrictions and the defendants’ communications with the platforms. …they do not point to any specific instance of content moderation that caused them identifiable harm.”
The ruling says social media companies are private business and they have the right to suppress certain categories of speech, place warning labels on some posts, delete others and also demote content if the posts violate their content moderation policies. Sure the government flagged posts and accounts but the Supreme Court said “… evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.”
In the dissent Justice Alito calls this case one of the most important free speech cases in years. He says obviously – private entities are not subject to the first amendment and they may “publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech.” He acknowledges that some of the online information posted about covid19 especially was “undoubtedly untrue or misleading and downright dangerous” but what the government did was equally as dangerous because it was he says it was more subtle and covert. He says “it was blatantly unconstitutional, and the country may come to regret the court’s failure to say so.”
This is going to become very very important as we move into the 2024 election. The social media companies are already talking about their election misinformation rules and plan to vigorously enforce them. At this point the supreme court says that’s absolutely legal and not violating your rights. But we are still waiting on two more important social media rulings that could set a standard for government intervention online.
