Social media ruling could ‘chill’ Biden admin efforts to limit misinformation

The Biden administration’s legal battle over social media content moderation may reach the Supreme Court but any outcome of the case will have far-reaching implications for online speech.

An appeals court panel on Friday found that the Biden administration likely violated the First Amendment by forcing social media companies to moderate certain content, ordering that agencies federally cannot “force” social media platforms to remove posts the government does not like.

The Justice Department now has a week to decide whether to ask the Supreme Court to review the case, paving the way for a consequential censorship legal battle to reach the high court.

But whether the Supreme Court accepts the case or not, its final resolution has the potential to dramatically change the long-standing relationship between the government and social media companies, especially as the outcome of this election year approaches. .

“The push of this case – the goal of this case – is to stop what is a fairly extensive and established practice of government actors and platforms talking about certain areas of content moderation, ” said Evelyn Douek, a law professor at Stanford University who specializes in private and public regulation of online speech.

“A vague rule has the potential to chill a wide variety of ongoing, established practices,” he added.

At the center of such a practice by the Biden administration is the attempt to police misinformation online about COVID-19 where doubts about vaccines are widespread.

At one point in 2021, amid the administration’s vaccine distribution campaign, President Biden himself denounced social media companies, referring to Facebook, which he said were “killing people” because to allow misinformation about vaccines to spread unchecked.

Two Republican attorneys general brought the case last year in a challenge to the Biden administration’s efforts to curb misinformation online. They called the efforts a “campaign of censorship” and said federal officials “coordinated and colluded with social-media platforms to identify undesirable speakers, points of view, and content .”

In July, a Louisiana-based federal judge sided with the attorneys general, barring Biden administration officials from contacting social media companies in connection with “any means of removal, removal, suppression , or curtail content with protected free speech posted on social-media platforms. .”

Officials from the Department of Health and Human Services, the Centers for Disease Control and Prevention, the Department of Justice, the State Department and the FBI were told to cut off communications with the companies.

While the district court’s decision was “a little all over the place,” the appeals court’s decision “restricted a lot” the lower court’s ruling on the administration’s speech to social media companies, according to David Greene. , director of civil liberties at the Electronic Frontier Foundation .

The appeals court panel emphasized the “limited reach” of its ruling on the order, noting that officials from the National Institute of Allergy and Infectious Diseases (NIAID), Cybersecurity and Infrastructure Security Agency (CISA) and State The Department did not cross the line of pressuring social media companies that they found other government agencies did.

“In fact, many of those officials were allowed to give speeches to the government,” he said [their] responsibilities,’ or ‘just getting involved [a] legitimate action,’” the panel wrote.

But despite the appeals court’s reduction in the district judge’s original order, there is “a lot to be gained” from getting more clarity from the Supreme Court about what is and isn’t allowed, Douek said.

“It feels like there’s kind of an anchor effect going on here, where the district court’s ruling is so broad that if the appeals court comes in and narrows it down, it might look reasonable in comparison. ,” said Douek. “But it’s much broader, in a lot of ways.”

That breadth leaves plenty of room for the Supreme Court to weigh what government actors can and can’t do when talking to social media companies about content moderation and other issues, he added.

Determining how the conservative-majority Supreme Court will weigh in — if it decides to hear the case — will not bode well for the Biden administration, which last term saw the high court side with it in some cases. and rules against it in others.

The appellate court’s order will take effect in one week unless the government requests an intervention from the Supreme Court. In court filings, the Justice Department indicated that the appeals court’s order “will inform any request for relief that the government may file with the Supreme Court.” The DOJ declined to comment on whether it intends to petition the high court.

If the DOJ asks the Supreme Court to review its case, it could delay the start of future trials while also offering insight into the high court’s view of online speech issues, Greene said.

“It might give them a preview of how the judges think about the case,” he said. “There might be some strategic advantage in doing that.”

If the Biden administration does not petition the high court – or if the Supreme Court refuses to hear it – the case will likely go to trial, a goal of Louisiana Attorney General Jeff Landry, one of the original plaintiffs in the case.

“We are determined to bring this to justice so that the victims can be vindicated and we can prevent this gross abuse of power from ever happening again, especially in times of crisis where information is most important, ” said Landry.

Two other cases with petitions pending at the Supreme Court could throw out a Biden DOJ petition if the high court justices deem the former resolved the latter.

Cases in Texas and Florida questioning whether the US Constitution allows states to stop social media companies from removing posts of their views raise “overlapping issues” in the case against the Biden administration, said Greene.

When questioned by Supreme Court justices, the administration urged the high court to hear both cases and rule in favor of the social media companies.