SCOTUS Is Urged to Clarify Proper Communications Between Government, Social Media

Government “co-option” of the content moderation systems of social media companies “is a serious threat to freedom of speech,” especially for social media users “with no say in whether their speech is silenced,” said the Electronic Frontier Foundation and the Center for Democracy & Technology in a U.S. Supreme Court amicus brief Thursday (docket 23-411) in Murthy v. Missouri. The brief is in support of neither the plaintiffs seeking to impose a social media content moderation injunction on federal officials, nor the government seeking to defeat it.

But there are “clearly times” when it’s “permissible, appropriate and even good public policy” for government agencies and officials to “noncoercively” inform, communicate with and even attempt to persuade social media companies about the user speech they publish on their sites, said the brief. The “applicable” First Amendment test, from the 1963 SCOTUS decision in Bantam Books v. Sullivan, “balances these competing interests,” it said.

The First Amendment “forbids” the government from intimidating or coercing a private entity to censor, “whether that pressure is direct or informal,” said the brief. But the test also recognizes that “not every communication to an intermediary about users’ speech is unconstitutional,” it said.

The distinction between proper and improper government communication influencing publishing decisions “is often fuzzy,” said the brief. But the government is best placed to provide clarity, “by ensuring that its communications with intermediaries neither directly nor informally serve as regulatory instruments,” it said. SCOTUS should clarify the analysis “to assist all stakeholders and ensure essential communications can resume with proper safeguards for speech in place,” it said.

Neither the district court nor the 5th Circuit “adequately distinguished between improper and proper communications,” nor provided “adequate guidance” to either the government or anyone seeking “to hold the government to its proscriptions,” said the brief. SCOTUS must independently review the record and “make the searching distinctions the lower courts did not,” it said.

Government involvement in content moderation “implicates both users’ and companies’ First Amendment rights,” said the brief. Users have an “obvious” First Amendment right against government censorship of their constitutionally protected speech online, “even when such censorship is accomplished subtly,” it said. Online publishers also have a First Amendment right “to decide what speech to publish and how to publish it,” it said.

Courts must be “especially protective of users’ rights” because users can’t depend on the intermediaries, on whom they rely to distribute their speech, to do so, said the brief. Speakers from “marginalized communities” or those who hold controversial or unpopular views that don’t provide intermediary publishers significant financial benefits “are especially victimized by passive acquiescence to government censorship demands,” it said.

Content moderation systems are “fraught,” and governmental manipulation of them to control public dialogue or silence disfavored voices “raises classic First Amendment concerns,” said the brief. Governments have “outsized influence” to manipulate platforms’ content moderation processes for “their own political goals,” it said: “This is especially problematic for government actors such as law enforcement whose communications may be inherently threatening or intimidating.”

But despite the concerns raised by governments’ involvement in content moderation processes, “not every government communication to a social media site is either improper or unwise,” said the brief. Users generally want to receive authoritative and accurate information that they can trust, “situated within a healthy information environment,” it said.

Interactions between platforms and governments can be an “important means of fostering healthier and more reliable information environments on social media,” said the brief. They can also “diminish the impact of disinformation, spam, and other efforts to distort the marketplace of ideas,” it said. The government “is especially well-poised to contribute to trustworthy information environments on topics where it holds expertise,” it said.