The Most Crucial Legal Case of 2024
Freedom of expression and the responsibility of the Facebooks (Metas) and X’s of the world regarding the misinformation they allow to flourish on their platforms will play out before the United States Supreme Court.
When you consider the most important legal matters of 2024, those involving Donald Trump naturally come to mind. Will the former president be convicted before the November election? Will he be the first president officially recognized by the courts as a criminal?
These are weighty questions, but the fact remains they could actually have less impact than a more obscure case the Supreme Court is hearing this week.
In Murthy v. Missouri, the court must determine what the government can and cannot do in combating misinformation on social platforms. Five social media users in two states—Missouri and Louisiana—have alleged that some of their posts were removed following pressure from federal authorities.
The First Amendment expressly provides that the government cannot make any law that abridges the freedom of speech.*
A social network, which is a private company, may choose not to publish certain language. But if the government forces a company to delete or monitor the very same language that is considered censorship, which the government may not do.
The question before the court is whether Joe Biden administration in its early days, crossed the line into censorship when it pressured social platforms like Facebook and X (formerly known as Twitter) to delete certain messages posted by users about the presidential election and the COVID-19 pandemic—messages that, according to the administration, constituted misinformation.
This case is undoubtedly the most consequential of those before the high court this term which ends in June, as its decision will set the parameters for nothing less than public debate in the United States.
Between Combating Misinformation and Censorship
One of the most regrettable aspects of hyperpolarized public debate, notably on social media, is the artificial opposition that two sides create when they are not actually that far apart.
On the one hand, misinformation is a real problem on social platforms. Conspiracy theories can spread like wildfire despite the fact they are objectively false—for example, the recent and absurd notion of a vast conspiracy theory between the White House, Biden’s election campaign, the National Football League and Taylor Swift.
On the other hand, many of the views and messages the government once considered “misinformation” and, in recent years, were often removed from social networks were either legitimate political opinions or information that was likely true—for example, the possibility that the virus responsible for the pandemic was created in a lab and escaped by accident.
So, which is the greater risk and the greater harm: allowing the dissemination of false information, or suppressing what is true?
In principle, the less free rein government has to filter content on social platforms, the greater the risk of misinformation; the more free rein the government has, the greater the risk of missing out on valuable information and perspective.
The Evolution of Content Moderation
The history of content moderation on the internet is as little known as it is fascinating. Just over a decade ago, the U.S. viewed a “free” internet in a positive light.
In the context of the 2011 Arab Spring, the U.S. considered the Web, and networks like Facebook to be extraordinary and unprecedented tools that citizens of authoritarian countries could use to mobilize against existing regimes (regimes often opposed to the U.S.). Restricting speech on the internet was synonymous with autocracy; not doing so, with democracy.
Ironically, just a few years later in the same region, the rise of the Islamic State exploited the internet as a tool for propaganda and recruitment and led the U.S. to pressure social networks to increasingly control what they posted on their platforms.
Once the government invoked national security combat external threats like the Islamic State, the next logical step was to apply that pressure to fight domestic threats like questioning the American electoral system.
Over time, the links between the U.S. national security apparatus and social media platforms became such that there were direct, secret communication channels between the FBI and what was Twitter’s senior management.
However, the question remains: Where, exactly, is the line between government-authorized communications and a social network platform, and coercion that amounts to censorship? That is what the Supreme Court must establish.
The Fundamental Problem
If the matter seems particularly thorny—and vague—it’s because social media platforms enjoy all the advantages of traditional media, including the freedom to exercise editorial discretion in filtering user content without being subject to federal law (including law that governs defamation or hate speech, for example).
During oral arguments before the court on Monday, Justice Ketanji Brown Jackson, a Biden nominee, posed an interesting question: What should the government do if social media users post messages daring children to jump from a window?
If this question comes up, it is precisely due to the preferential treatment that all administrations have afforded the web giants since their inception—because if people made similar remarks on a traditional media outlet and children died jumping into the void, these outlets would face lawsuits. A 1996 law protects social networks from such liability.
When the internet emerged on a major commercial scale in the 1990s, the government frowned upon the idea of regulating it for fear of nipping a promising industry in the bud.
That can has been kicked down the road, and the issue now seems impossible to resolve successfully. The Supreme Court decision will not resolve the fundamental issue of establishing once and for all whether social networks are platforms OR media. For this, we would need to have the political will to effectively confront these giants—a will that doesn’t exist at the moment.
*Editor’s note: The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech nor of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.”
When you consider the most important legal matters of 2024, those involving Donald Trump naturally come to mind. Will the former president be convicted before the November election? Will he be the first president officially recognized by the courts as a criminal?
These are weighty questions, but the fact remains they could actually have less impact than a more obscure case the Supreme Court is hearing this week.
In Murthy v. Missouri, the court must determine what the government can and cannot do in combating misinformation on social platforms. Five social media users in two states—Missouri and Louisiana—have alleged that some of their posts were removed following pressure from federal authorities.
The First Amendment expressly provides that the government cannot make any law that abridges the freedom of speech.*
A social network, which is a private company, may choose not to publish certain language. But if the government forces a company to delete or monitor the very same language that is considered censorship, which the government may not do.
The question before the court is whether Joe Biden administration in its early days, crossed the line into censorship when it pressured social platforms like Facebook and X (formerly known as Twitter) to delete certain messages posted by users about the presidential election and the COVID-19 pandemic—messages that, according to the administration, constituted misinformation.
This case is undoubtedly the most consequential of those before the high court this term which ends in June, as its decision will set the parameters for nothing less than public debate in the United States.
Between Combating Misinformation and Censorship
One of the most regrettable aspects of hyperpolarized public debate, notably on social media, is the artificial opposition that two sides create when they are not actually that far apart.
On the one hand, misinformation is a real problem on social platforms. Conspiracy theories can spread like wildfire despite the fact they are objectively false—for example, the recent and absurd notion of a vast conspiracy theory between the White House, Biden’s election campaign, the National Football League and Taylor Swift.
On the other hand, many of the views and messages the government once considered “misinformation” and, in recent years, were often removed from social networks were either legitimate political opinions or information that was likely true—for example, the possibility that the virus responsible for the pandemic was created in a lab and escaped by accident.
So, which is the greater risk and the greater harm: allowing the dissemination of false information, or suppressing what is true?
In principle, the less free rein government has to filter content on social platforms, the greater the risk of misinformation; the more free rein the government has, the greater the risk of missing out on valuable information and perspective.
The Evolution of Content Moderation
The history of content moderation on the internet is as little known as it is fascinating. Just over a decade ago, the U.S. viewed a “free” internet in a positive light.
In the context of the 2011 Arab Spring, the U.S. considered the Web, and networks like Facebook to be extraordinary and unprecedented tools that citizens of authoritarian countries could use to mobilize against existing regimes (regimes often opposed to the U.S.). Restricting speech on the internet was synonymous with autocracy; not doing so, with democracy.
Ironically, just a few years later in the same region, the rise of the Islamic State exploited the internet as a tool for propaganda and recruitment and led the U.S. to pressure social networks to increasingly control what they posted on their platforms.
Once the government invoked national security combat external threats like the Islamic State, the next logical step was to apply that pressure to fight domestic threats like questioning the American electoral system.
Over time, the links between the U.S. national security apparatus and social media platforms became such that there were direct, secret communication channels between the FBI and what was Twitter’s senior management.
However, the question remains: Where, exactly, is the line between government-authorized communications and a social network platform, and coercion that amounts to censorship? That is what the Supreme Court must establish.
The Fundamental Problem
If the matter seems particularly thorny—and vague—it’s because social media platforms enjoy all the advantages of traditional media, including the freedom to exercise editorial discretion in filtering user content without being subject to federal law (including law that governs defamation or hate speech, for example).
During oral arguments before the court on Monday, Justice Ketanji Brown Jackson, a Biden nominee, posed an interesting question: What should the government do if social media users post messages daring children to jump from a window?
If this question comes up, it is precisely due to the preferential treatment that all administrations have afforded the web giants since their inception—because if people made similar remarks on a traditional media outlet and children died jumping into the void, these outlets would face lawsuits. A 1996 law protects social networks from such liability.
When the internet emerged on a major commercial scale in the 1990s, the government frowned upon the idea of regulating it for fear of nipping a promising industry in the bud.
That can has been kicked down the road, and the issue now seems impossible to resolve successfully. The Supreme Court decision will not resolve the fundamental issue of establishing once and for all whether social networks are platforms OR media. For this, we would need to have the political will to effectively confront these giants—a will that doesn’t exist at the moment.
*Editor’s note: The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech nor of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.”
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