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‘No Guarantee of Anything’

Will the High Court Side With Biden on Social Media 'Censorship'?

Expect the U.S. Supreme Court to support the White House and reject Missouri’s First Amendment challenge claiming administration officials colluded with Big Tech to censor COVID-19 content, legal experts said in interviews last week. Others in the case were less certain, saying the high court provided mixed signals during March 18 oral argument in Murthy v. Missouri (docket 23-411) (see 2403180051).

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The court was asked to decide how far the government can go in suggesting social media content moderation, particularly when public health is at stake. Missouri and Louisiana claim Biden officials violated the First Amendment by coercing platforms to remove COVID-19 information that conflicted with the administration’s stance on vaccines.

The government is likely to win, but it won’t be a sweeping decision, Manhattan Institute Constitutional Studies Director Ilya Shapiro predicted. The institute filed in support of Missouri and on behalf of three people who suffered “irreparable” injuries after getting the vaccine. Their injuries ranged from “lifelong” disability to chronic neuropathy, according to the filing.

While the Manhattan Institute argued the administration colluded with platforms to “warp” public discourse, Shapiro said it appears a majority of the court will side with the government. It will be difficult for justices to draw a line where the government simply stated its positions on the pandemic or instead threatened platforms, he said. The government might simply win on the question of standing or other technical issues with how the litigation was framed, Shapiro said.

The majority of justices were skeptical about a direct link between government statements and platform content moderation, said Grayson Clary, staff attorney for the Reporters Committee for Freedom of the Press, which filed in support of neither party. Clary noted how Justices Brett Kavanaugh and Elena Kagan had concerns about how a victory for Missouri might have a chilling impact on routine interactions between government officials and the media. Other justices were skeptical the plaintiffs have standing and whether there’s clear evidence the administration pressured the platforms, he said. The “only sympathy” for Missouri came from Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, who made up the court’s minority in its 6-3 vote to grant DOJ’s request for a stay of an injunction that blocked Biden officials from communicating with the platforms, he noted.

Medical associations clashed in briefs over discourse surrounding the vaccine's efficacy. The American Academy of Pediatrics and five other mainstream medical groups filed in support of the government, saying FDA-approved vaccines are safe, save lives, reduce the prevalence of deadly diseases and reduce burdens on the medical system. It’s an “indisputable scientific fact” that vaccinations “save lives,” and misinformation on the topic reduces vaccine uptake, making it harder to control the spread of disease, the groups said: “Combatting vaccine misinformation is, at its simplest, the government trying to prevent factually incorrect statements from costing people their lives.”

The Association of American Physicians and Surgeons disagreed, saying the right to criticize a vaccine is “essential,” especially when the government “flagrantly ignores safety issues.” There are multiple historical examples of inadequately tested vaccines causing widespread harm, including the vaccine for diphtheria, which increased mortality rates, the filing said. The conservative group pointed to studies it said showed a link between the COVID vaccine and heart-related deaths in young men.

The government can share factual, urgent information with the help of social media platforms, but that doesn’t mean officials can use the “banner of misinformation” to pressure platforms to censor information in unsettled scientific debates, said Larry Ebner, general counsel for the Atlantic Legal Foundation. The foundation filed in support of Missouri. Ebner declined to speculate on how the high court might rule.

There’s no guarantee of anything one way or the other,” said Mike Farris, general counsel for National Religious Broadcasters. Farris estimated he’s been able to accurately predict Supreme Court decisions after argument in about 80% of cases, but said “this is not one I can readily predict.” NBR believes the Biden administration took an overly broad approach in suppressing valid speech. He noted there’s a limited set of circumstances when the government can violate the First Amendment: Obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct and child pornography. The Biden administration’s communications with platforms about COVID-19 didn’t fit that limited set of circumstances, he said. A decision is expected in June.