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There’s a reason the first amendment of the bill of rights in the constitution is “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Justice Kentaji Jackson Brown’s engagement in a discussion with Benjamin Aguiñaga, the Louisiana Solicitor General, spotlighted the intricate dance between safeguarding citizens and upholding free speech rights. During this exchange, Justice Brown expressed concern over the government’s duty to censor information considered dangerous, juxtaposing the necessity of protecting the populace with the potential overreach of First Amendment restrictions. This conversation, lacking a specific date but indicative of recent jurisprudential debates, underscores the evolving judicial perspective on the government’s role in managing harmful content, especially in an era dominated by digital platforms.
In the case of Murthy v. Missouri, the controversy centers around the extent of the federal government’s ability to influence social media companies regarding content moderation, especially content that is protected by free speech rights. This case evolved from allegations that Biden administration officials were contacting social media services to encourage or pressure them into removing or suppressing content related to COVID-19 policies, the validity of the 2020 election, and other politically sensitive topics, primarily of a conservative nature.
The district court issued a preliminary injunction on July 4, 2023, barring several Biden administration officials from urging social media companies to remove content containing protected free speech. This injunction covered agencies including the Department of Justice, Department of Health and Human Services, State Department, Centers for Disease Control and Prevention, and the Federal Bureau of Investigation. It also affected three academic programs at Stanford University and the University of Washington that study the spread of misinformation online. The injunction permitted exceptions for issues related to criminal activity and national security threats.
The Fifth Circuit upheld the district court’s ruling in September 2023 but narrowed the scope of the injunction. The appeals court maintained that the federal government had coerced or significantly encouraged social media platforms to moderate content in a way that violated the First Amendment, particularly against conservative viewpoints. However, it specified that the government’s actions must not coerce or significantly encourage social media companies to suppress protected free speech.
The Supreme Court agreed to hear the case in October 2023 and decided to lift the lower courts’ injunctions, allowing the federal government to resume contacting social media companies without restrictions while the case proceeds. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from this decision. Oral arguments were heard on March 18, 2024, and the case is currently pending adjudication.
If you would like to read more about this topic, I’ve added some commentary here: The Ongoing Debate Over the Constitutional Right to Freedom of Speech
