Supreme Court Sets Date for COVID Social Media Censorship Case

Murthy v. Missouri is just one of many social media cases the Court is considering this term.
Supreme Court Sets Date for COVID Social Media Censorship Case
A photo shows the logos of Facebook, Twitter, Instagram, Google, and Snapchat. (Denis Charlet/Getty Images)
Sam Dorman

The Supreme Court has scheduled oral argument in Murthy v. Missouri, which involves multiple states and medical professionals suing the Biden administration for allegedly coercing social media companies to suppress certain content about COVID-19.

Missouri brought the suit along with Louisiana, social media users, and the founder of Gateway Pundit. Among the defendants are dozens of Biden administration officials including Surgeon General Vivek Murthy and White House Press Secretary Karine Jean-Pierre. President Biden was a defendant in the case, previously known as Biden v. Missouri, while it went through the Fifth Circuit but was later removed, along with others like Food and Drug Administration, because the district court ultimately didn’t enter injunctive relief against them.

Scheduled for March 18, the oral argument comes after some justices decided to stay a lower court decision halting the government from coercing or meaningfully controlling social media platforms content moderation efforts. It involves communications between White House officials, various executive entities like the Centers for Disease Control and FBI, and social media companies.

In upholding an earlier version of the injunction, the U.S. Court of Appeals for the Fifth Circuit Court ruled last year that the administration’s communications constituted the type of coercion of social media companies that betrayed its duty not to violate the First Amendment.

Three judges signed onto an opinion that cited various communications in detail. For example, it pointed to how a White House official “responded to a moderation report by flagging a user’s account and saying it is ‘[h]ard to take any of this seriously when you’re actively promoting anti-vaccine pages.’ The platform subsequently ’removed‘ the account ’entirely‘ from its site, detailed new changes to the company’s moderation policies, and told the official that ’[w]e clearly still have work to do.'”
“The official responded that ’removing bad information‘ is ’one of the easy, low-bar things you guys [can] do to make people like me think you’re taking action.‘ The official emphasized that other platforms had ’done pretty well‘ at demoting non-sanctioned information, and said ’I don’t know why you guys can’t figure this out.'”

‘Sweeping’ Injunction

The Biden administration has disputed the injunction, describing it as overly broad and defending their communications with social media companies as protected by law.

“The lower courts then entered a sweeping preliminary injunction that effectively installs the district court as the superintendent of the Executive Branch’s communications with and about the platforms,” the Justice Department’s (DOJ) petition for writ of certiorari reads.

It further argues that “government officials are and must be free to inform, to persuade, and to criticize. Such government speech often prompts private entities to act, but that does not transform those entities into state actors. Were it otherwise, every successful public-awareness campaign or use of the bully pulpit would create state action.”

According to the opinion, that official also “told a platform that it ’remain[ed] concerned‘ that the platform was encouraging vaccine hesitancy, which was a “concern that is shared at the highest (and I mean highest) levels of the [White House].’ So, the official asked for the platform’s “road map to improvement” and said it would be ‘good to have from you all ... a deeper dive on [misinformation] reduction.’”

Besides its First Amendment claims, the DOJ is alleging that the plaintiffs didn’t have standing to bring the challenge.
Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch seemed to agree with the Fifth Circuit when they signed onto an October opinion dissenting from the Court’s decision to stay the district court’s injunction. Although a vote count wasn’t provided, those types of decisions generally require a majority vote of at least five justices.

“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,” the dissent, authored by Justice Alito, read. “That is most unfortunate.”

Their dissent also pushed back on the DOJ’s contention that the district court’s injunction was overbroad.

Supreme Court Justice Samuel Alito poses in Washington on April 23, 2021. (Erin Schaff/Pool via Reuters)
Supreme Court Justice Samuel Alito poses in Washington on April 23, 2021. (Erin Schaff/Pool via Reuters)

It argued that “the injunction does not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government’s view of responsible conduct.”

“The injunction applies only when the Government crosses the line and begins to coerce or control others’ exercise of their free-speech rights. Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?”

Murthy v. Missouri is just one of many social media cases that the Court is reviewing this term. A week after hearing this case, it will hear two cases, including one from the Fifth Circuit, surrounding laws restricting social media companies’ ability to censor or moderate content.

Sam Dorman is a Washington correspondent covering courts and politics for The Epoch Times. You can follow him on X at @EpochofDorman.
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