The Biden administration’s legal fight over social media content moderation could soon reach the Supreme Court but any outcome in the case would have resounding implications for online speech.
An appeals court panel on Friday found the Biden administration likely violated the First Amendment by pressuring social media companies to moderate specific content, ruling that federal agencies cannot “coerce” social media platforms to take down posts the government doesn’t like.
The Justice Department now has a week to decide whether to ask the Supreme Court to review the case, paving the way for a consequential legal fight over censorship to reach the high court.
But whether the Supreme Court takes up the case or not, its ultimate resolution has the potential to vastly reshape the longstanding relationship between the government and social media companies, particularly as a consequential election year nears.
“The thrust of this case – the goal of this case – is to stop what is a pretty extensive and established practice of government actors and platforms communicating about certain areas of content moderation,” said Evelyn Douek, a law professor at Stanford University who specializes in private and public regulation of online speech.
“An unclear rule has the potential to chill a wide variety of ongoing, established practices,” she added.
At the heart of this such practice by the Biden administration was attempts to police misinformation online about COVID-19 in which doubts about vaccines ran rampant.
At one point in 2021, amid the administration’s vaccine distribution campaign, President Biden himself lashed out at social media companies, taking particular aim at Facebook, which he said was “killing people” for allowing misinformation about vaccines to spread unchecked.
Two Republican attorneys general brought the case last year in a challenge to the Biden administration’s efforts to curb false information online. They called the efforts a “campaign of censorship” and said federal officials “coordinated and colluded with social-media platforms to identify disfavored speakers, viewpoints, and content.”
In July, a Louisiana-based federal judge sided with the attorneys general, barring Biden administration officials from contacting social media companies relating to “any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”
Officials from the Department of Health and Human Services, the Centers for Disease Control and Prevention, the Department of Justice, the State Department and the FBI were told to cut those communications with the companies.
While the district court’s decision was “a bit all over the place,” the appeals court’s decision “really sharply narrowed” the lower court’s injunction on the administration’s talk with social media companies, according to David Greene, civil liberties director at the Electronic Frontier Foundation.
The appeals court panel emphasized the “limited reach” of its ruling in the order, noting that officials from the National Institute of Allergy and Infectious Diseases (NIAID), Cybersecurity and Infrastructure Security Agency (CISA) and State Department did not cross the line into coercing the social media companies that they found other government agencies did.
“Indeed, many of those officials were permissibly exercising government speech, ‘carrying out [their] responsibilities,’ or merely ‘engaging in [a] legitimate action,’” the panel wrote.
But despite the appeals court’s narrowing of the district judge’s original order, there’s “a lot to be gained” from getting greater clarity from the Supreme Court on what is and is not permissible, Douek said.
“It feels like there’s kind of an anchoring effect going on here, where the district court ruling was so crazily broad that when the court of appeals comes in and narrows it, it maybe looks sensible by comparison,” Douek said. “But it’s still pretty broad, in a lot of ways.”
That broadness leaves plenty of room for the Supreme Court to weigh in on what government actors can and cannot do when communicating with social media companies about content moderation and other issues, she added.
Determining how the conservative-majority Supreme Court might weigh in – if it decides to hear the case at all – is iffy for the Biden administration, who last term saw the high court both side with it in some cases and rule against it in others.
The appeals court’s order will take effect in a week unless the government seeks intervention from the Supreme Court. In court filings, the Justice Department indicated that the appeals court’s injunction would “inform any request for relief the government may file in the Supreme Court.” The DOJ declined to comment on whether it intends to petition the high court.
If the DOJ does ask the Supreme Court to review its case, it could delay the start of a future trial while also offering insight into the high court’s perception of issues of online speech, Greene said.
“It might give them some preview into how the justices are thinking about the case,” he said. “There might be some strategic advantage to doing that.”
Should the Biden administration not petition the high court – or if the Supreme Court declines to hear it – the case will likely head to trial, a goal of Louisiana Attorney General Jeff Landry, one of the case’s original plaintiffs.
“We are determined to bring this to trial so that the victims are vindicated and we can prevent this gross abuse of power from ever happening again, especially in a time of crisis when information is most important,” Landry said.
Two other cases with petitions pending before the Supreme Court could edge out a Biden DOJ petition if the high court justices think the former resolve the latter.
Cases in Texas and Florida questioning whether the U.S. Constitution allows the states to stop social media companies from removing posts over their viewpoints raise “overlapping issues” with the case against the Biden administration, Greene said.
When asked by the Supreme Court justices, the administration urged the high court to hear the two cases and rule in favor of the social media companies.
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