Last Wednesday witnessed the Biden Administration secure a technical yet sizable victory ahead of this year’s elections. In a significant ruling, the U.S. Supreme Court allowed the Administration along with federal bodies, including the pivotal FBI, to continue their guidance to social media platforms to eradicate content flagged as misinformation. This decision likewise enables the Department of Homeland Security to remain vigilant and identify social media content potentially manufactured by foreign agents to provoke chaos during this presidential race.
The verdict is of immediate consequence. During the proceedings the Supreme Court, in a 6-3 decision, refrained from tackling the substantial First Amendment controversies inherent in the case. Instead, the court concluded that both, the state and social media consumers who opposed the Administration, did not possess the lawful right to institute a lawsuit. It was articulated that to initiate such a legal course, the plaintiffs would have had to demonstrate substantial vulnerability to an imminent injury, directly traceable to a governmental defendant, which could be mitigated by the injunction they were demanding.
Despite this, no plaintiff could sufficiently meet this requirement for an injunctive relief. Media outlets revealed that Biden’s administration has been steadfastly channeling its efforts towards encouraging leading social media platforms to expunge posts that disseminate misinformation on various critical topics. These include, but are not limited to, vaccination campaigns, reports around the COVID-19 pandemic, and startling misinformation about the 2020 election.
These posts, contends the Government, were in violation of the platforms’ self-defined policies. There were severe criticisms raised by Republican officials hailing from Missouri and Louisiana, in addition to five social media users; they all brought forth litigation in 2022. These critics were unwavering in their belief that the White House had extended its reach beyond mere persuasion, compelling the tech leviathans to suppress certain deceptive elements.
They lambasted the administration for running what they considered an underground, unofficial crusade of coercion to silence dissenting voices – an approach known colloquially as ‘jawboning’. The critics employed the incident involving social media companies’ suppression of the news around Hunter Biden’s laptop in late 2020, claiming that this was palpable proof of unlawful governmental influences.
However, internal correspondence spotlighting the manner in which Twitter handled the narrative around this laptop story illustrated a split within its senior staff. That created doubts about the validity of the accusations claiming governmental pressure. Furthermore, the plaintiffs accused the FBI of relying on these platforms to expunge content tagged as ‘foreign’, regardless of whether they were penned domestically.
This lawsuit raised serious concerns over the U.S. government’s capacity to shape public discussions on vital matters – these debates traditionally unfolded on the op-ed pages of newspapers but have transitioned predominantly online. This also queried the government’s competence to collaborate with private entities to tackle broad, societal challenges.
The government argued that the social media plaintiffs did not have the legal standing to challenge, partly because their content received moderation before the administration started to flag posts as problematic. The administration maintained that the states also lacked the legal standing, attributing it to ‘a few isolated incidents of content moderation, which had no specific links to any governmental actions.’,
Interestingly, last year, a federal judge in Louisiana instituted a preliminary injunction barring both, the White House and other federal agencies from coordinating with these social media sites concerning content removal. However, the 5th US Circuit Court of Appeals, via a three-judge panel, revised the injunction’s extent to only a select few agencies suspected of breaching the First Amendment. This list consisted of the White House, the U.S. Surgeon General Vivek Murthy, the Centers for Disease Control, the Cybersecurity and Infrastructure Security Agency, and the FBI.
During the oral arguments conducted in March, several conservative justices harbored skepticism towards the state’s case. In various hypothetical cross-examinations, Justices Roberts, Kavanaugh, and Barrett voiced concerns over establishing a precedent that curtailed the government’s freedom to liaise with platforms over potentially damaging information. These justices argued this included the dissemination of threats to public figures via social media, or disclosure of top-secret information related to U.S military operations.
This issue reached the Supreme Court at a crucial moment, as the current administration issued warnings frequently about foreign objectives to influence US elections through social media platforms. Particularly in February, the Director of National Intelligence indicated that China’s ‘escalating endeavors to exploit perceived divisions in U.S. society using online personas’ would likely ‘adopt a strategy reminiscent of Moscow’s playbook’ later in the year.
The case of ‘jawboning’ is but one of a series of high-profile legal battles being fought in the courtrooms involving the crucial intersection of the First Amendment and social media. In a series of other ongoing litigations, officials from both Florida and Texas are rigorously defending various laws that safeguard these platforms from censoring conservative content.
The prevailing state of affairs prompts a broader reflection on the complex relationship between governmental entities and social media platforms. Amid a rising tide of misinformation and ‘fake news’, these platforms find themselves in the tricky position of being both the cause and the solution, having been weaponized to spread untruths but also potentially serving as useful tools in the dissemination of authentic, reliable information.
In the light of the court’s decision, one might wonder about the implications of this verdict for future collaborations between government organizations and private entities. As these platforms continue to occupy a significant portion of public discourse, questions about their roles, responsibilities and relationships with the government are only likely to grow in importance and urgency.
Looking ahead, it remains critical that we continuously scrutinize and reassess the current systems at play in the area of public information. At a time when we are grappling with a deluge of online information, being able to distinguish the truth from deceptions and sharing that on a large scale is more important now than ever before. As it stands, how the government interacts and influences these platforms will undoubtedly have an impact on our collective ability to discern truth, fuelling debates about censorship, bias and the very nature of free speech in the digital age.
