The Journal. - Is Fighting Misinformation Censorship? The Supreme Court Will Decide.

Episode Date: March 21, 2024

This week, the Supreme Court is considering whether the Biden administration unlawfully pressured tech companies to suppress social media posts opposed to Covid vaccines. We talk to WSJ’s Jess Bravin about the latest in a series of cases that could set important ground rules for free speech and online content moderation.  Further Reading: - Covid-Era Case on Free Speech to Test Supreme Court  - Supreme Court Voices Skepticism Over Social-Media Censorship Claims Against Government  Further Listening: - Inside One Publisher’s Fight Against Book Bans  Learn more about your ad choices. Visit megaphone.fm/adchoices

When the baseball star Hank Aaron died in 2021, at the age of 86, people took to social media to remember his legendary career. Some posted about his legacy as a civil rights icon. Others posted about his incredible swing and how he held the career home run record for more than three decades. But there was one tweet that caused a firestorm. It was from the politician Robert F. Kennedy Jr., who suggested that Aaron's death was caused by the COVID vaccine.

He said, quote, Hank Aaron's tragic death is part of a wave of suspicious deaths among elderly closely following administration of COVID vaccines. The Biden administration asked Twitter to remove Kennedy's tweet, which the company did. It was one of many posts the government asked social media sites to take down during the pandemic. Now, the administration's effort to go after what it saw as misinformation online

is under the spotlight of the Supreme Court in a case known as Murthy v. Missouri. It's one of the biggest tests of the First Amendment in years. This is a case about what the plaintiffs call censorship and what the government calls guidance. That's our colleague Jess Braven. He covers the Supreme Court and was listening as the justices heard oral arguments earlier this week. So what would you say is the central question at the heart of this case?

The central question is, where is the line between expressing an opinion and censoring speech? between expressing an opinion and censoring speech. Welcome to The Journal, our show about money, business, and power. I'm Ryan Knudsen. It's Thursday, March 21st. Coming up on the show, should the government be allowed to ask social media platforms to remove content? 1800 Tequila believes that taste is more than just a detail. It's everything. Taste changes the game.

It attracts all the attention. Taste elevates everyday moments into extraordinary experiences. Savor the best taste in tequila. 1800. Taste is everything. Please enjoy responsibly. The fight against misinformation online goes back years. But in 2021, as the pandemic was killing thousands of Americans each week, the issue took on new urgency. The newly elected Biden administration said bad information put people at risk.

Officials reached out to social media companies and asked them to take action on posts they viewed as problematic. There were several types of posts that officials objected to. But the most important one, from the government's point of view, was generating fear of vaccines. The government believed that vaccines and mass vaccination was the way to get the pandemic under control and that having millions and millions of people fearful of vaccines would be devastating to public health. And there were some very prominent people who had a different point of view, and Robert F. Kennedy Jr. is, of course, one of them.

Kennedy, who tweeted about Hank Aaron, has been a longtime critic of vaccines. For the record, the medical examiner said Aaron died of natural causes. The Biden administration also asked social media sites to remove posts that said the virus was man-made, that criticized lockdowns, or that questioned the efficacy of masks. The government would sometimes flag specific posts and point them out to their contacts at the social media platforms

and say, we think this one's a problem. They also liked to talk to the platforms about the algorithms they were using to identify problematic information and how are you sorting it, how are you filtering it, how are you finding it. And this was public. I mean, there were news articles about it in 2021. I mean, this wasn't like some classified thing. The government's fairly open about complaining about bad information moving across social media platforms. complaining about bad information moving across social media platforms. But some people, Republicans in particular, didn't like what the government was doing. And in 2022, the attorneys general of Missouri and Louisiana, along with other individuals, sued the Biden administration.

Vivek Murthy, the surgeon general under Biden, was named as a lead defendant. The plaintiffs allege the government's actions amounted to censorship. What was this case's path to the Supreme Court? Well, the case was filed in a courthouse in Monroe, Louisiana, where there is a Trump-appointed judge who was expected to be very sympathetic to this argument, the attorneys general of Missouri and Louisiana asserted the right to protect the interests of the residents of those states, saying those residents, either their views might be suppressed by this illegal censorship, or alternatively, their right to read or hear or learn things

was being interfered with by this censorship. On July 4th last year, that judge ruled in favor of Louisiana and Missouri. He issued a sweeping opinion calling this an Orwellian form of censorship that the government was imposing on Americans. The government appealed the ruling, and eventually it made its way up to the Supreme Court this week. We'll hear argument first this morning in case 23-4-11, Murthy v. Missouri. Okay, so what were Louisiana and Missouri's main arguments in this case?

The Solicitor General of Louisiana, who argued this case for all the plaintiffs, said that, okay, the government has a right to express an opinion. It has a right to use the bully pulpit and say, Americans, don't listen to that foolish information or whatever. But they don't have the

right to say to a publisher or a platform, take down that information, take down that post. Their argument is that when the government takes that step, it crosses into coercion and coercion of private speech is not permitted under the First Amendment. The government has no right to persuade platforms to violate Americans' constitutional rights. And pressuring platforms in back rooms, shielded from public view, is not using the bully pulpit at all. That's just being a bully. I mean, do they have evidence to support that the government was being coercive or forcing them to do it?

Well, it's an implication. or forcing them to do it? Well, it's an implication. The implication is that the government has behind it the ability to take all kinds of serious steps against these private companies. And the theory of this case is that when White House officials or people in the Surgeon General's office or at the FBI

call Facebook and say, take down these posts or don't let this known purveyor of disinformation continue to spread these dangerous theories about COVID. When they do that, they carry with them the implication of retaliation if there isn't compliance, because there could be an antitrust investigation. There could be the White House supporting legislation that would be bad for some of these companies. All those things lurk, at least in theory, in the background.

The Louisiana argument, the argument of the plaintiffs, is that this was a kind of pervasive, behind-the-scenes campaign that really left these platforms no choice but to comply. So what was the Biden administration's defense? The Biden administration said that what we did regarding these COVID posts is no different from what the government has done for decades and decades and decades. I think the idea that there'd be back and forth between the government and the media

isn't unusual at all. And government officials are not shy about telling the media when they think they got something wrong or asking them not to publish something or saying, this person you're relying on is a known charlatan or is a foreign agent or something like that, and you shouldn't print that. So they say there are many, many times that you've heard government officials say publicly that they don't like certain things that were published or that TV networks shouldn't run certain shows or shouldn't propel certain storylines on the news or what have you. The government says it's done this in situations involving national security or war,

and that this kind of back and forth should be allowed because it's necessary to keep the public safe. From the government's point of view, they have an obligation to protect the public and to prevent the spread of dangerous information that misleads people, and particularly in the context of the COVID pandemic, where public health depended on a sort of a critical mass of people obtaining vaccinations in order to stop the spread of this sometimes deadly disease, interfering with the

vaccination program based on completely unsupported theories was a danger to the nation. It was an emergency. It was a literal public health emergency that required people to know what the actual risks were. And the government says they have to take steps to do that. Coming up, how the Supreme Court justices responded to these arguments. Then ziplining across the Ottawa River between two provinces. Ah! Before cycling along a picturesque pathway. Oh! And seeing your favorite artist at a giant outdoor music festival. Ah! Adventure awaits in Ottawa.

From O to Ah. Plan your Ottawa adventure at ottawatourism.ca. Own each step with Peloton. From their pop runs to walk and talks, you define what it means to be a runner. Whatever your level, embrace it. Journey starts when you say so. If you've got five minutes or 50, Peloton Tread has workouts you can work in. Or bring your classes with you for outdoor runs, walks, and hikes led by expert instructors on the Peloton app.

Call yourself a runner. Peloton All Access Membership Separate. Peloton All Access membership separate. Learn more at onepeloton.ca slash running. Our colleague Jess says that many of the justices seem receptive to the government's argument that there is, and always has has been a normal back and forth between officials and the press. What were you able to tell about how the Supreme Court justices

who were hearing these arguments were responding to them? It seemed to me that most of the justices found the plaintiffs' arguments problematic from a number of reasons. Some of the justices seem to have personal experience in dealing with the media. Justice Brett Kavanaugh, Justice Elena Kagan, and Chief Justice John Roberts all worked in the White House for one president of one party or another, and all of them seem to recall their

own interactions or the interactions of the press staff with the news media and occasions where they reached out to complain about certain stories, complain about certain information that was being published, and urge reporters or editors not to publish it. And Justice Kavanaugh, for instance, he likened it, he said he had a national security analogy. Probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, you know, if you run that, it's going to harm the war effort and put Americans at risk. And so they seem to be thinking about, you know, well, I used to complain all the time about stuff I didn't like being published. And I didn't see any problem with it. And they seem to believe it was just a feature of the way the government works and the way our democracy works. Were there camps that seemed to emerge among the justices on this issue, or did it seem that they were more uniformly skeptical?

In this instance, it seemed that most of the court was leaning toward the government's view of these kind of interactions being allowable. The only justice who appeared very skeptical of the Biden administration's position was Justice Samuel Alito. You know, he said he looked at these kinds of emails and these communications and the tenor of the language used by government officials. He said, you know, the White House is treating Facebook as a subordinate. It's basically asking, you know, why haven't you shown us? Why are you hiding the ball from us? They want to have regular meetings and they suggest, why don't you, they suggest rules that should be applied and why don't you tell us everything that you're going to do so we can help you and we can look it over. And I thought, wow, I cannot imagine federal officials taking

that approach to the print media, our representatives over there. And he said he couldn't imagine that that is the kind of interaction that the White House has with the New York Times or the Wall Street Journal or the Associated Press or other major news organizations. And from his point of view, this was not like the sort of traditional back and forth between the news media and the government. This was something that looked different. The ruling is expected to come by July. What will it mean for the future of misinformation on the internet if Louisiana wins or if the U.S. government wins? Well, if the U.S. government wins, firstly,

it depends on what the U.S. government wants to do. I mean, who controls the U.S. government wins, firstly, it depends on what the U.S. government wants to do. I mean, who controls the U.S. government is up to the voters this November. And so a lot of it depends on that. Were this challenge to succeed, I think that you will see a much more freewheeling internet because one of the checks on what appears on social media will be gone, or the government's ability to influence what appears on social media will be significantly reduced. Now, whether that has a good or bad effect obviously depends on where you stand. Murthy v. Missouri is one of several cases involving free speech and online content moderation that the Supreme Court is taking on this year. For example, last month, the justices heard challenges to laws

in Florida and Texas that seek to limit how much social media companies can moderate people's posts. The other major cases involving free speech and the internet also come out of the same view by some people on the right that social media platforms are censoring their views, are keeping their ideas out of the public discourse. And this particularly came into focus when Facebook and Twitter blocked Donald Trump after they viewed his role in the January 6th attack on the U.S. Capitol as violating their policies, or the things that he was tweeting and posting were violating their policies against inciting violence or unlawful conduct or what have you. So that really crystallized for some conservatives the idea that our opinions and our views and our perspective is being blocked by these social media platforms.

by these social media platforms. Have all these cases had an impact on how social media platforms and also the government are approaching misinformation on their platforms and policing it this year? Well, you know, the government pulled back on some of these encounters because they are facing this type of legal assault. I think for the social media platforms, I mean, you know, they are facing this type of legal assault. I think for the social media platforms, I mean, you know, they are very powerful. They are ubiquitous for many Americans, and they are facing a range of pressure. I mean, at the same time that they face complaints that

they're taking down too many posts, they're also facing complaints that they're allowing up too many dangerous posts. I mean, they, you know, they are in a position that they, you know, they certainly worked hard to achieve that makes them central to a lot of the discourse in the United States. And therefore they get pressure from all sides. To be continued...