The Supreme Court Social Media Free Speech Case (Murthy v. Missouri)

On March 18, 2024 the most important 1st Amendment case in recent history was argued in the U.S. Supreme Court.  Can social media be censored by the government?

Here is a question.  Former President Donald Trump recently warned of a "bloodbath" if he is not elected.  Can the Biden administration deem this a threat? If so, can it ban social media from quoting this or allowing the video to be shared on Twitter, X - Facebook?   What about on television. Television uses public "airwaves". Streaming media uses internet infrastructure just as does social media.  Is it possible that Trump can make the statement and be 1st Amendment protected but the sharing of his statement be banned as it uses social media and/or it uses public transportation via internet infrastructure?

How about the statement itself.  If it is deemed insurrection or threatening voters can it directly be banned?  Can a law be passed saying that speech that threatens the political process is criminal?

And how does the case just argued before the Supreme Court play into this?   The current case addresses whether the government can pressure social media to clamp down on hate speech.  Remember that the 1st Amendment does not protect citizens from PRIVATE curbs on speech only governmentally imposed curbs.  So are pressures on social media companies a type of governmental coercion limiting speech by pressuing the platforms to do the government's dirty work?

Strangely, this issue is 200 years old!   

Censorship by the government was allowed in 1798 and the government could imprison you for opposing the United States policy.  This law was never overturned and the SEDITION ACT and its constitutionality is being argued albeit indirectly, right now in the U.S. Supreme Court.

What is the Sedition Act?

Fortunately the correct question is what was the sedition act.  But first, some history.

In 1798, the United States and France were potentially at war. It is called the Quasi-War and in 1798 it was called “The Undeclared War with France," the "Pirate Wars," and the "Half War”. It was fought at sea and it lasted from 1798-1800. John Adams was President and he actually reinstated George Washington as Commander in Chief of the military. The background is that France and Great Britain were at war. This was the revolutionary France that had overthrown the King. This war started when Washington was President and he stayed neutral.

Meanwhile, the United States signed a treaty with Britain called the Jay Treaty. It settled Revolutionary War issues and opened up trade and diplomatic relationships with Great Britain.  France got mad and since it just had a revolution it was a disorganized mess politically.  After failed attempts to obtain bribes and benefits from the U.S., France started a sea war attacking our ships.

The Federalist Party took the position against France and in favor of strong government vs. Jeffersonian side which favored more decentralization and generally looked for more neutrality.

The Alien Acts were passed which targeted immigrants who were believed to be more favorable to the Jeffersonian side. The Sedition Acts tried to control speech. The Sedition Act made it a crime to "print, utter, or publish...any false, scandalous, and malicious writing" that criticized the United States government. This rule included journalists. Jefferson won the next election and the Sedition Act expired (and Alien Act) so it was never constitutionally tested. It is not clear if the Supreme Court at that time would have even ruled on the “constitutionality” of the statute but that is a discussion for another time.

Fast forward to today. On March 18, 2024 lawyers repersenting the states of Louisiana and Missouri argued to the U.S. Supreme Court that Biden administration had violated the 1st Amendment when it pushed social media platforms to censor speech that the Biden Administration considered dangerous and irresponsible. The Biden Administration argued that reasonable limits could be pushed by the government.

The name of the case is Murthy v. Missouri (That is the right spelling it is not Murphy) The central legal issue is whether the United States government was so involved in pressuring social media companies to control content that they went over a First Amendment line and transformed content-moderation into government censorship. The Government’s argument was that they were using the bully platform and legitimate pressure but not governmental force, to advocate for change, moderation and control.

The central question could be phrased this way. Are Facebook, Twitter, Reddit and other platforms the new “town square”? If “yes”, then are all content restrictions prohibited and the only allowed restrictions are immediate safety concerns (e.g. you can’t stand in a park and urge one person to hit another person).

The Supreme Court certainly made it clear that it favored governmental input and strong governmental intervention being allowed.

Justice Ketanji Brown Jackson made the point (by asking a question) about whether the government could intervene when (if) one of those internet (Tik Tok) (hypothetically) urged teenagers to jump out of windows. Here is what she said:

“Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?”

However, this comment does not mean that actual force can be used vs. strong persuasion. In fact, the Biden Administration argued that it was not using force to push it views but only persuasion. He said there were not explicit threats or promises. However this is not entirely accurate. Section 230 of the Communications Decency Act is a 30 year old law that protects Facebook, Twitter etc from from liability for what is said on their platforms as long as they don’t promote the ideas/statements. This is a statutory protection and constitutional (1st Amendment) protections are unclear. The constant threat to modify or abrogate Section 230 is a threat to the very existence of all social media. Hence there is an threat and a President who controls the House and the Senate will have tremendous power over social media.
Here is a link to 47 USC 230

Other Justices made the following points during the argument.

Justice Kavanaugh, who worked for President George W. Bush said that the Presidential branch would “regularly call up the media and berate them.” Hence he was seeing the argument not in terms of force but permissible argument. Justice Kagan who worked for President Clinton noted that she had “some experience with encouraging press to suppress their own speech.” “I mean,” she said, “this literally happens thousands of times a day in the federal government.”

This case will be decided in several months and it will potentially be one of the most important 1st Amendment cases of all time.