Both liberal and conservative justices at the Supreme Court today seemed wary of finding that the Biden administration acted improperly when it worked with Big Tech companies to censor online content it deemed “misinformation” regarding the 2020 presidential election, the COVID-19 pandemic, and other issues.

The case at hand is Murthy v. Missouri, in which plaintiffs argue that the government overstepped the mark and violated the First Amendment when it asked the likes of Meta Platforms Inc., Google LLC-owned YouTube and X Corp – then Twitter Inc. – to take down posts and silence content it said was misinformation.

In some cases, the censored content clearly wasn’t outright misinformation, such as the COVID-19 lab leak theory, which now seems more likely, the topic of the effectiveness of masks, the Hunter Biden laptop and scientists in the Great Barrington Declaration who warned about the potential harms of prolonged lockdowns. In all these cases, it seems the government overreached by blocking valid information, but the government claims it was only acting for the good of the people.

After hearings in 2023, a preliminary injunction was placed on the Biden administration, preventing the administration from contacting the said companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”

The Biden administration later argued that it had every right to try to protect U.S. citizens from misinformation. “Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people,” said the White House, adding that preventing all contact would do more harm than good. The counterargument, voiced by U.S. District Judge Terry Doughty, was this kind of collusion could create a reality “similar to an Orwellian ‘Ministry of Truth.’”

Today, Brian Fletcher, the principal deputy solicitor general of the justice department, argued that the government hadn’t coerced these companies, rather it had persuaded them. “When the government persuades a private party not to distribute or promote someone else’s speech, that’s not censorship, that’s persuading a private party to do something that they’re lawfully entitled to do,” he said.

Benjamin Aguiñaga, the solicitor general of Louisiana, didn’t agree, stating that the Biden administration had covertly censored much-needed information, thereby breaching the First Amendment. “The government has no right to persuade platforms to violate Americans’ constitutional rights, and pressuring platforms in backrooms shielded from public view is not using the bully pulpit at all,” he said in his opening statement. “That’s just being a bully.”

Liberal Justice Ketanji Brown Jackson didn’t see it like that, asking Aguiñaga: “Suppose someone started posting about a new teen challenge that involves teens jumping out of windows at increasing elevations? Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information?”

The New Civil Liberties Alliance talked about the danger in censoring opinions from “top doctors and scientists” whose social media posts “turned out to be factually accurate, depriving the public of valuable perspectives during a public health crisis.” Even so, the justices seem skeptical of banning the government from intervening in any way at all regarding what Americans consume through social media.

The justices will rule on the case by the end of June.

Photo: Ian Hutchinson/Unsplash