The Supreme Court will soon hand down a decision with far-reaching implications for how the rhetorical marketplace functions in the social media era.
The case is Murthy v. Missouri, and it deals with government efforts to manipulate and manage social media platforms for its own messaging purposes.
It is important that the justices get this decision right. They must clearly define the extent to which the government can control the content of social media outlets, ultimately limiting the voices of regular people who might dare to post opinions unapproved by government. A limited or technical legal ruling will be insufficient if the court hopes to genuinely guide the nation, restrain government machinations, and protect robust rhetorical participation by a variety of citizen voices.
This legal battle stems from a lawsuit filed by the attorneys general of Missouri and Louisiana. They allege the Biden administration badgered social media companies to restrict content about a laundry list of topics. Those topics included COVID practices and vaccinations, the 2020 election, Hunter Biden’s laptop, abortion, Afghanistan, and basically anything the White House didn’t like. It is stating the obvious, to point out that there is an inherent touch of coercion any time government pesters a media outlet to do its bidding.
Federal District Judge Terry Doughty issued an injunction restricting the Biden administration from manipulating social media outlets to control the digital public square. Doughty said the government’s actions were arguably “the most massive attack against free speech in United States’ history.” He went on to say the government had “used its power to silence the opposition.”
The Biden administration appealed, as expected, and the Supreme Court heard arguments earlier this term.
The government, of course, has its own First Amendment rights. Presidential administrations have a long history of pressuring media outlets, hoping to spin and shape public opinion in service of their own motives.
There was a time, however, when traditional newspaper and television journalism outlets maintained a fierce independence from government arm-twisting. Today’s social media platforms appear more comfortable with carrying water for the political superstructure.
That might be because those social media giants are government collaborators, or perhaps they are just afraid and intimidated by government strong-arm tactics. Either way, the rhetorical marketplace gets distorted away from robust debate.
The issue before the court in Murthy v. Missouri is whether the Biden administration was coercing social media platforms to do its bidding or merely engaging in the age-old practice of government jawboning and coaxing. There is no question that social media platforms responded to government pressure. In the process, those supposed free speech venues silenced the voices of countless private citizens who were using social media to express their own dissent against government policies.
In the oral arguments held last spring, Justice Kentanji Brown Jackson challenged the attorneys representing Missouri and Louisiana: “My biggest concern is that your view has the First Amendment hamstringing the federal government in significant ways in the most important time periods.” She stated that “the government actually has a duty to take steps to protect the citizens of this country.”
But it is difficult to say what crisis would be important enough for the government to bastardize the First Amendment, stifling citizen voices under the guise of protecting those citizens. Presidential administrations are decidedly self-interested, to the point that “important” just means “politically beneficial” to most presidents.
A major rationale in the creation of the First Amendment was, indeed, to stop government from dominating the national discourse at the expense of individual citizens. The constitutional framers created free expression protections as a way to empower the people, not the government.
Presidential administrations have all kinds of levers to pull in getting their messaging out to the public; heck, the president can address the entire nation as quickly as he can get out a phone. If an administration can’t move public opinion through the combined power of the federal bureaucracy, it shouldn’t be allowed to leverage social media platforms to do its bidding, shutting up the voices of private citizens along the way.
The Supreme Court needs to issue a ruling that allows for government jawboning but still protects a regular guy in Missouri or Louisiana who posts government-unapproved messages on social media. Any decision that fails to clearly define the government-social media collaboration rules will guarantee continued rhetorical chaos. Such failure would simply leave the clarification to a future court, after an undefined period of First Amendment abuse.
Jeffrey M. McCall is a media critic and professor of communication at DePauw University. He has worked as a radio news director, a newspaper reporter and as a political media consultant.