Can the government ask social media sites to take down Covid misinformation? SCOTUS will weigh in

WASHINGTON — The Supreme Court will this March hear arguments centered on the government’s role in communicating — and sometimes censoring — pertinent public health information in the midst of a pandemic.

At the core of the lawsuit is whether the federal government’s requests for social media and search giants like Google, Facebook, Twitter, and YouTube to moderate Covid-19 misinformation violated users’ First Amendment rights.

While the suit was originally filed by then-Missouri Attorney General Eric Schmitt — and known as Missouri v. Biden — a range of plaintiffs arguing that the Biden administration suppressed their Covid-19 content later joined. Those include Jay Bhattacharya and Martin Kulldorff, who co-authored a paper, the Great Barrington Declaration, advancing the theory that people could achieve herd immunity without vaccines.

Jim Hoft, owner of conservative outlet The Gateway Pundit, also joined the suit. Google in 2021 said it demonetized the website and many of its articles. “We have strict publisher policies that prohibit content promoting anti-vaccine theories, Covid-19 misinformation, and false claims about the 2020 U.S. Presidential elections,” a spokesperson said at the time.

The case is now referred to as Murthy v. Missouri.

The 5th Circuit Court of Appeals — the same court that heard the mifepristone case that will head to the Supreme Court later in March — ruled that a range of government agencies, including the Health and Human Services Department, the State Department, and cybersecurity officials, were prohibited from influencing social media companies’ content-moderation policies.

The Supreme Court in October 2023 issued a stay on that order until it rules on the case.

Conservative justices ​​Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from that decision.

“At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news,” Alito wrote.

U.S. Solicitor General Elizabeth Prelogar has argued in court filings that the relationship between government agencies and social media sites was collaborative and while government officials “frequently suggested” removal of false information, they did not force companies.

“There is a fundamental distinction between persuasion and coercion,” Prelogar wrote.