Social Media and Free Speech

As of this past Thursday, the Supreme Court temporarily blocked a lower court ruling that prevented the Biden administration from communicating with social media companies about content that could be labeled as misinformation. Justice Samuel Alito stepped in on this block giving the courts time to decide whether or not grant this request. Terry Doughty, a federal judge in Louisiana issued this order back in 2022, encouraging companies not to engage in removing “misleading content” as it violates the protected free speech clause. The Missouri and Louisiana attorneys general, accuses the Biden administration of “effectively silencing conservatives by pressuring private social media companies in its effort to moderate online misinformation about Covid-19” [1] This specific order prevents the government from discussing matters such as flagging social media posts or anything pertaining to free speech. Bigger issues, on the other hand, such as national security threats, illegal activity etc., can be discussed. However, now that the Supreme Court has blocked this decision, there is a big question regarding social media and the use of free speech. Is trying to regulate content from social media platforms, even misinformation, a violation of the 1st amendment? Even if it is for the greater good of the American people, does it still make it right for the government to flag certain posts?

Firstly, it is important to take a look at the injunction itself. The lawsuit itself claims that the there was coercing done by the government (bully pulpit effects), will only have negative consequences and push free speech violations in the future. However, one could argue that this injunction “constraints and has negative effects on really important government speech interests.” [2] This of course includes information relating to the pandemic and the election. But the people spreading this information aren’t public officials, and whether or not the information being spread is true or not, is it actually causing a threat or direct harm? The 5th Circuit panel agreed that officials do have interest in engaging with social media companies, however, they should not be allowed to further advance to the point where content is suppressed. The question of free speech can be difficult when referring to social media. Depending on how one interprets the 1st amendment whether that be by the book, or from a progressive perspective, media users are subject to misinformation whether that be from social media or from TV networks. So it can be argued that there was a violation of the 1st amendment, however, should the government be held to the same standard? The court has had a history of ruling that the government can impose such reasonable restrictions, for instance Ward v. Rock Against Racism (1989). In this case “Even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech…”, which means that the Biden administration has a right to contact these media companies, when it comes to content being spread. [3] The lower court rulings will be on hold considering this matter until September 22nd.