A new litmus test for the First Amendment
Oral arguments on Murthy v. Missouri will be heard today by the Supreme Court. At stake could be the future of online speech.
The First Amendment: 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.
Normally, I don’t pay rapt attention to media coverage of cases before the Supreme Court of the United States (SCOTUS).
There are exceptions, of course. The reversal of Roe v. Wade in 2022 and the court’s decision last year to strike down Affirmative Action had/have far-reaching social implications and consequences affecting millions of Americans.
The former is a flashpoint for women’s reproductive rights and will be a major issue in the upcoming elections in November. Remember that on average women comprise a majority — 53 percent — of the voting population. In scaling the influence and ultimately the outcome(s) of national and state elections, American women constitute the voting bloc that holds the greatest sway.
But that is not on my mind today. Nor is the much more highly publicized case pending against former President Donald Trump as he appeals his “executive immunity” claim to the high court.
My attention is drawn to the oral arguments before the SCOTUS in the Murthy v. Missouri case, which begins today (Monday, March 18).
What is Murthy v. Missouri?**
** Originally filed by the states of Missouri and Louisiana and five individual citizens1 as Missouri v. Biden. It was changed in the government’s appeal to the SCOTUS, with Surgeon General Vivek H. Murthy as the primary petitioner.
This is a First Amendment issue with major ramifications. It is emblematic of broader debates over the role of government in regulating online platforms and the protections afforded by the First Amendment in the context of online speech.
Murthy v. Missouri began as a civil case originally filed in the District Court (Louisiana) by the States Attorneys General of Missouri and Louisiana, et. al. against President Joe Biden and several major federal agencies.
The crux of the plaintiffs’ case was to protest government interference as to who and what could be published or posted on social media. In essence, the plaintiffs asked the court to get the government to “back off” in suppressing online speech. They argued it was tantamount to censorship.
On July 4, 2023, the District Court of the Western District of Louisiana sided with the plaintiffs and granted a preliminary injunction against the defendants (the President, et. al), ordering the government to cease 10 “actions” in its communications with the social media platforms.
That decision was appealed and later modified and scaled down by the U.S. Fifth Circuit Court of Appeals. However, one key component (see “Cut to the chase” below) of the preliminary injunction was stayed by the Fifth Circuit. The government then petitioned that decision in its appeal to the SCOTUS.
(Here is a preview of the case from Just Security and Tech Policy Press.)
Backstory: Whodunnit?
The historical origins that led to the lawsuit date back almost a decade and encompass several major issues debated on the platforms, including the contested 2016 presidential election, accusations of Russian interference (a.k.a. “Russiagate”), the COVID outbreak and response, and the Hunter Biden laptop story.
As early as 2015, the plaintiffs stated, government agencies and even some elected officials2 began collaborating with Twitter and Facebook officials to monitor these debates and “flag” anyone taking unfavorable positions.
The scope of government meddling, they said, was enormous. The original lawsuit identified 27 departmental defendants, starting with the President, and included agencies such as the Department of Health and Human Services (HHS), the Centers for Disease Control (CDC), the Department of Homeland Security (DHS), the Cybersecurity and Infrastructure Security Agency (CISA), the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Department of Treasury.
The evidence of government interference, especially on Twitter, turned out to be substantial in both scope and amplitude.
The Hunter Biden Laptop
Original hints of government involvement came from the censorship of reporter Miranda Divine’s New York Post story on Oct. 14, 2020, about the contents and veracity of the information discovered in the FBI investigation of the president’s son’s laptop computer and his dealings with Ukraine and China.
Facebook, Twitter and YouTube blocked the story from being disseminated or even mentioned on their platforms.
Eventually, evidence was uncovered that heavy pressure was applied by the White House, the FBI and CISA to quash the story, calling it a conspiracy theory and “misinformation.”
The “Twitter Files”
Discovery of government interference expanded dramatically shortly after Elon Musk successfully purchased Twitter (and later re-named “X”) on Oct. 27, 2022. About a month after the purchase, Musk invited independent journalists Matt Taibbi, Bari Weiss, Michael Shellenberger and others to Twitter headquarters in San Francisco to look at years of interactions between Twitter’s previous leadership and the government.
What the journalists discovered was staggering.
Thousands of emails, phone records, shared notes and internal communications were revealed in a series of stories of what became known as the “Twitter Files.” The stories detailed evidence of how, for several years, scores of federal officials had been actively involved with Twitter and other companies regarding the “spread of misinformation” on their platforms. In their concern, those officials collaborated with the platforms to remove disfavored content and accounts from their sites.
How deep did it go?
At one point, according to the Twitter Files, the FBI office in San Francisco directed as many as 80 agents to scan Twitter and Facebook for disfavored content.
It also was reported that up to a thousand “tweets” were identified and reported to Twitter daily by various government actors.
How deep did it go? At one point, the FBI office in San Francisco directed as many as 80 agents to scan Twitter and Facebook for disfavored content.
And, the platforms complied. Twitter’s top executives gave government agencies access to an expedited reporting system, downgraded or removed flagged tens of thousands of posts, and “de-platformed” (suspended the accounts of) many ordinary users.
Among those de-platformed were Dr. Jay Bhattacharya (Stanford University) and Martin Kulldorff (Harvard University), renowned epidemiologists who co-authored the Great Barrington Declaration in 2020. The Great Barrington Declaration was critical of the government’s prevailing COVID-19 policies. It currently has nearly 1 million signators worldwide.
Twitter also modified its internal user policies to capture more flagged content and sent steady reports on their moderation activities to the officials.
Here is Taibbi discussing the Twitter Files with Nico Pirrino, executive vice president of the Foundation of Individual Rights and Expression (FIRE), a nonprofit advocate for free speech.
Cut to the chase
The lower courts dismissed several of the original complaints against the government but kept in place the injunction on collaborations between social media companies and the White House, the Office of the Surgeon General, the CDC, CISA, and the FBI.
Specifically, the injunction prevents those federal agencies from engaging in two key actions:
They may not “coerce” or “significantly encourage” social media platforms to make content moderation decisions.
They may not “meaningfully control” social media platforms’ content moderation processes.
The ramifications of the SCOTUS’ consideration of the government’s appeal against the injunction are massive, especially in light of protections guaranteed under the First Amendment.
What constitutes “free speech” in this context? Does the government’s collaboration with these platforms constitute a violation of the First Amendment? Can the government justly exert its influence on what it considers legitimate concerns about “misinformation” and “disinformation?” Can the public decide for itself what to believe and what not to believe?
Expect media reports on the SCOTUS deliberations to fall along partisan lines. Left-leaning media (the New York Times, MSNBC, etc.) will be critical of the original plaintiffs’ case and supportive of the government. Conversely, right-leaning media (the New York Post, Fox News, etc.) will support the cause of the original plaintiffs.
A decision is expected by the end of Summer.
Stay tuned. I know I will be.
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Jim Geschke was inducted into the prestigious Marquis Who’s Who Registry in 2021.
Included among the five individuals filing suit were Drs. Jay Bhattacharya (Stanford University) and Martin Kulldorff (Harvard University), two epidemiologists who co-wrote the Great Barrington Declaration, an article criticizing COVID-19 lockdowns. Dr. Kulldorff was fired last week by Harvard Medical School for stances critical of COVID vaccinations.
Among the elected officials identified were Congressman Adam Schiff (D-CA), and former Congressman Adam Kinsinger, a Republican representative from Illinois.
Thanks for the yucks Jim! And don't forget the bumper sticker "Honk if you're horny for God"
So incredibly true a teacher not only has a calling but the return and reward and wisdom is beyond words. Thanks for bringing it to life.