Joe Biden’s Government will be able to continue interacting with social networks to combat hoaxes, as the United States health authorities did during the pandemic, when they urged the removal of disinformation messages in relation to Covid or vaccines. The Supreme Court, despite its conservative majority, has rejected the attempt by several Republican states to put restrictions on that power. The ruling has special importance in the middle of an election year, a breeding ground for hoaxes of all kinds.
Of course, the Government cannot impose its own content moderation policy on social networks or force the removal of one message or another, but Republicans considered a censorship exercise contrary to the First Amendment of the United States Constitution — which enshrines freedom of expression—the mere fact that the authorities warned about certain content. The Supreme Court rejects that thesis by six votes to three. Conservative justices Samuel Alito, Neil Gorsuch and Clarence Thomas have formulated a dissenting opinion to the contrary.
A court decision in Louisiana provisionally prohibited much of the Biden Administration from interacting with and addressing social media, partially agreeing with a 2022 Republican lawsuit alleging that the federal government had overstepped its bounds. It prevented them from holding meetings with companies, specifically flagging content or posts for removal, urging or otherwise pressuring social networks to modify their guidelines to remove, delete or reduce certain content, and even sending them emails or messages. As exceptions, the judge allowed social media companies to be informed of publications that imply criminal activities and conspiracies, as well as to notify threats against national security.
After several appeals, which in part corrected that decision, the case reached the Supreme Court, pitting the States of Louisiana and Missouri —under Republican control—, plus some network users, against the White House. The Biden Administration stressed that with these theses it would lose its ability to communicate with social networks about anti-Semitic and anti-Muslim publications, as well as about issues of national security, public health and electoral integrity.
After analyzing the case, the judges conclude that, “although the file reflects that the [funcionarios] “Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own discretion.”
The judges believe that no specific case has been proven in which the government pressured a social network to censor a specific topic before that platform suppressed a plaintiff’s speech on that topic. “The plaintiffs, without any specific link between their damages [el contenido restringido o censurado] and the conduct of the defendants, ask us to conduct a review of years of communications between dozens of federal officials, across different agencies, with different social media platforms, on different topics. “This Court’s standing doctrine prevents us from exercising such general legal oversight of the other branches of Government,” says the ruling, written by conservative Amy Coney Barrett.
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There is another point that played against the social media users who had joined the lawsuit and who accused the Government of censorship: “Which complicates the plaintiffs’ effort to demonstrate that each platform acted due to Government coercion, rather than in their own judgment, is the fact that the platforms began removing plaintiffs’ content before defendants’ challenged communications began,” the ruling states.
“Unrelenting pressure”
The dissenting opinion of three justices is signed by Samuel Alito, from the most conservative end of the Court. “For months, senior government officials put relentless pressure on Facebook to suppress Americans’ free speech. As the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent,” its ruling reads.
The Supreme Court has yet to decide two other similar cases of even more significance regarding the moderation policy of social networks, which affect their essence. The States of Texas and Florida passed laws against these policies, arguing that they imposed censorship on their users. Several technology companies appealed and the Supreme Court is expected to decide this week.
The two parties, the States and the platforms, wrap themselves in the banner of freedom of expression that enshrines the First Amendment against state interference. Texas and Florida considered that banning messages and users violates it; The platforms, represented by sector associations, denounced that it was these laws that violated it by preventing them from choosing what to publish on their platforms. For States, social networks are more like telephones, communications cannot be interfered with; for the platforms, rather newspapers, with their editorial policy.
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