The Supreme Court heard arguments on Monday in a challenge to the Biden administration’s “censorship-industrial complex,” as Family Research Council President Tony Perkins described its methods of coercing or pressuring social media platforms to “stifle constitutionally protected speech that it viewed as misinformation or disinformation.” Whatever the court decides, Louisiana Governor Jeff Landry (R) described it on “Washington Watch” as “the most important First Amendment case in the last hundred years.”
The Substance of the Case
In the case (Murthy v. Missouri), Louisiana, Missouri, and several private individuals, including Stanford professor Jay Bhattacharya, sued the government over its “coercive relationship” with Big Tech officials, described Missouri Attorney General Andrew Bailey (R) on “Washington Watch.” Officials for the White House, the Centers for Disease Control and Prevention, the Federal Bureau of Investigation, and the Department of Homeland Security contacted social media companies and got them to remove or downgrade posts communicating an opinion contrary to the government.
“You can see in the emails where federal officials are demanding removal of certain posts, certain content, and then demanding that Big Tech change its censorship algorithms,” Bailey narrated. “And you can look on the back end … and see — at least when it comes to Facebook, as an example — internal emails from Facebook between their employees establish[ing] that Facebook changed its algorithms because of pressure from the federal government. That proves coercion.”
“Basically, they didn’t like critics having a voice,” Perkins summarized. Bailey agreed, “The goal of the vast censorship enterprise, from the federal government’s standpoint, was to drive from public discourse any viewpoint that they disagreed with.”
This constituted First Amendment violations of “enormous magnitude,” added Bailey. “It’s not just the speakers who were specifically silenced [who were harmed]. It’s anyone who would have heard the message that the speakers were trying to deliver.” By extension, this would mean “anyone who’s received any information from Big Tech social media.”
In response, Missouri and Louisiana sued, arguing that “the government cannot entice, or coerce, or force a private actor to do that which they [the federal government] cannot do,” according to Landry.
The Irony of the Case
Federal officials and social media companies often justified their censorship of certain viewpoints on the grounds that those viewpoints — especially if they related to COVID or elections — were “misinformation” or “disinformation,” and therefore not entitled to the respect accorded to other views. Thus, when scraping together a post-hoc rationale for their short-lived Disinformation Governance Board in 2022, DHS officials described “conspiracy theories about the validity and security of elections,” “disinformation related to the origins and effects of COVID-19 vaccines or the efficacy of masks,” and “falsehoods surrounding U.S. Government immigration policy.”
However, “much of that content” that was censored “turned out to be inconvenient truths for the Biden administration,” Perkins noted. “The government was wrong. They were the ones putting out disinformation.”
During the discovery phase of the lawsuit, the states obtained documents from the government, which proved the government knew the claims they wanted censored were not “disinformation,” as they were claiming. “We found out that, in fact, the government knew that possibly the virus, the COVID-19 virus, came out of a lab in Wuhan,” said Landry. “We found out that the FBI knew that they had the Hunter Biden laptop, and the New York Post article was not, in fact, Russian propaganda.”
In other words, the government was not only coercing social media companies to censor constitutionally-protected political speech, but also political speech the government knew to be true.
The Review of the Case
Yet, during the Monday arguments, a majority of Supreme Court justices seemed “skeptical” or “wary” of curtailing the federal government’s coercion of social media companies — and not just to the legacy media. Landry found it “troubling” that “many of the justices who I thought could have understood or grasped the First Amendment … their questioning just didn’t seem in line with that.”
Bailey’s assessment was slightly more optimistic. “There was definitely a lot of questioning about whether or not the communication between the federal officials and Big Tech social media rose to the level of coercion and whether that coercion actually resulted in censorship activity,” he admitted. “But that’s exactly what the evidence demonstrates.”
Bailey explained that the evidence of that coercion was entered into the factual record at the district court level and “locked in” by the district court’s preliminary injunction. Ultimately, he forecasted, “The Supreme Court is going to be deferential to the factual findings that occurred at the lower court level.”
The Impact of the Case
Another reason why the Supreme Court is likely to ultimately rein in the federal government is that “the harm is ongoing,” Bailey declared. “People are self-censoring. They’re less likely to talk about President Trump, election integrity, or COVID tyranny for fear of being booted off the platform. So, Americans are still suffering under this oppressive regime.”
In fact, the ongoing, politically-biased social media censorship takes a variety of harmful forms, as Chino Valley School Board President Sonja Shaw recently discovered. When members of the public searched for Shaw on Facebook and Instagram, the Meta-owned social media platforms instead warned, “We think that your search might be associated with child sexual abuse.”
Shaw has already faced everything from death threats to a barrage of state-funded lawsuits for wanting to protect children from inappropriate sexual content and for wanting their parents to play a role in their children’s education. “I have to fight against child abuse, and now I’m being targeted as a child abuser,” Shaw told TWS. “I’m the president of a school board. This is insane and vile. I have already seen people post talk about wishing violence on me and my family.”
Although Meta’s platforms “retracted and removed” the message, Liberty Justice Center, which represents Shaw, sent a letter demanding a guarantee that Meta “will never again target Ms. Shaw with another egregiously false statement.” They also demanded an explanation “as to how Meta decided to initially issue its false public statement associating and linking her with child sexual abuse, including any communication Meta may have received from any state or federal government officials about Ms. Shaw.”
If Meta responds to the last item, it may reveal further collusion between Big Tech and the federal government.
“This attack feels like an attempt to silence and intimidate,” Shaw added. “I am not just concerned about attacks on me, because baseless attacks can happen to anyone. No evidence, just retaliation for what appears to be because I have stood strong in defending parental rights.” Last year, a House Committee report confirmed that the Department of Justice had colluded with a special interest group to target parents, including using counterterrorism funds to investigate them.
“We’ve got to build a wall of separation between tech and state, in order to protect that First Amendment right to free speech on these platforms,” Bailey insisted. “This is protected core political speech, and the very heart of our nation is at risk here. If we don’t have a free, fair, and open marketplace of ideas, we cease to have a democratic republic.”
Landry affirmed that the Bill of Rights is “there for a reason,” elaborating that “it’s there to protect us from the government.” He called Murthy v. Missouri “the most important First Amendment case in the last hundred years,” because “whatever the court does in this case is going to have an impact on American citizens and the relationship of the First Amendment to them.”
The question is, as Perkins put it, “Will the Supreme Court see past the Biden administration’s claims and send a message that the First Amendment still matters?”
Joshua Arnold is a senior writer at The Washington Stand.
