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Supreme Court to hear court ban on government contact with social media companies

Eric Baradat
/
AFP/Getty Images

The U.S. Supreme Court on Friday agreed to review a lower court decision that barred White House officials and a broad array of other government employees at key agencies from contact with social media companies.

In the meantime, the high court has temporarily put on ice a ruling by the Fifth Circuit Court of Appeals that barred officials at the White House, the FBI, a crucial cybersecurity agency, important government health departments, as well as other agencies from having any contact with Facebook (Meta), Google, X (formerly known as Twitter), TikTok and other social media platforms.

The case has profound implications for almost every aspect of American life, especially at a time when there are great national security concerns about false information online during the ongoing wars in the Middle East and Ukraine and further concerns about misinformation online that could cause significant problems in the conduct of the 2024 elections. And that is just the tip of the iceberg.

Louisiana and Missouri sued the government, contending it has been violating the First Amendment by pressuring social media companies to correct or modify what the government deems to be misinformation online. The case is part of long-running conservative claims that liberal tech company owners are in cahoots with government officials in an attempt to suppress conservative views.

Indeed, the states, joined by five individuals, contend that 67 federal entities and officials have "transformed" social media platforms into a "sprawling federal censorship enterprise."

The federal government rejects that characterization as false, noting that it would be a constitutional violation if the government were to "punish or threaten to punish the media or other intermediaries for disseminating disfavored speech." But there is a big difference between persuasion and coercion, the government adds, noting that the FBI, for instance, has sought to mitigate the terrorism "hazards" of instant access to billions of people online by "calling attention to potentially harmful content so platforms can apply their content- moderation policies" where they are justified.

"It is axiomatic that the government is entitled to provide the public with information and to advocate for its own policies," the government says in its brief. "A central dimension of presidential power is the use of the Office's bully pulpit to seek to persuade Americans — and American companies — to act in ways that the President believes would advance the public interest."

History bears that out, Solicitor General Elizabeth Prelogar said in the government's brief. She also noted that social media companies have their own First Amendment rights to decide what content to use.

Three justices noted their dissents: Justices Samuel Alito, Clarence Thomas and Neil Gorsuch.

Writing for the three, Justice Alito said that the government had failed to provide "any concrete proof" of imminent harm from the Fifth Circuit's ruling.

"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 that increasingly dominates the dissemination of news, " wrote Alito.

The case will likely be heard in February or March.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.