Tag Archives: Social Media

The First Amendment and the Internet

The last week of the Supreme Court term was an utter disaster for anybody believing in the rule of law.  I will get to the worst of the worst over the next week, but I am going to start with the cases that merely had ambiguous result.

The Supreme Court had two cases involving how the First Amendment applies to social media companies.  The first, Murthy vs. Missouri, involved whether governmental “jawboning” of social media companies to more closely control the content posted on their websites was improper coercion infringing on the First Amendment rights of users of those websites.  The second, Moody vs. NetChoice (and the companion case, NetChoice vs. Paxton — yes, that Paxton) involves the state laws of Florida and Texas that seek to regulate the ability of social media websites to edit their own content.

Starting with Murthy, this case was brought in the Western District of Louisiana.  While it was brought in a division that had multiple judges, they were all appointed by President Trump.  In other words, it was guaranteed to have a judge who was sympathetic to plaintiffs’ complaints.  The plaintiffs were a mix of private conspiracy theorists and the Republican Attorney Generals of Louisiana and Missouri.  The gist of their complaints was that various social media websites had removed or downgraded certain posts submitted by these individuals under those companies’ policies governing the content of posts.  These posts included misinformation about topics like COVID and the elections.  At the same time, certain officials in the federal government were reaching out to these companies to encourage them to take a more vigorous editorial control over the content of their websites to block such information.  Plaintiffs alleged that, even though these officials had no regulatory authority over these websites, just the fact that the federal government was raising these issues with these companies was coercive and that the various websites took adverse actions with regards to the individuals posts. Continue Reading...

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End of Term

The Supreme Court picked up the pace this week, issuing nine opinions over two days.  At this point, the next opinion day is Wednesday.  As there are at least twelve opinions left, there is a good chance that Thursday and Friday will be added.

This week’s opinions included the last opinion from November which, as expected, went to Chief Justice Roberts.  Justice Kavanaugh had a December opinion which, as noted last week seemed to be the most likely. outcome in terms of which justice would join Justice Gorsuch and Chief Justice Roberts on the final three cases from December.  The other two cases — Purdue Pharma and Jarkesy — will more likely than not be authored by Justice Gorsuch and Chief Justice Roberts.

For January, as predicted last week, Justice Kagan had the opinion in the Confrontation Clause case leaving only the two Chevron deference cases.  It seems highly likely that there will be one opinion authored by Chief Justice Roberts or a lead opinion authored by the Chief Justice and a brief unsigned per curiam opinion in the other case. Continue Reading...

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Supreme Court Term 2023-24 — Two Weeks to Go (?) Update

This past week, the U.S. Supreme Court went from one opinion day (Thursday) per week to two opinion days (Thursday and Friday).  But the Supreme Court only issued three opinions on each day — four of the six have some political significance and so there will be posts on them later.  There are still 23 cases left to be decided (with 21-23 opinions) between them.  Thus unless, the pace of opinions picks up (and maybe 4 per day is likely), the Supreme Court needs at least seven opinion days between now and June 28.  The next opinion day is this Thursday.  While it is more likely than not that opinions will also be released on Friday, that would still leave four or five opinion days for the last week in June.  Maybe the last opinion day will be July 1 or July 2, but the Supreme Court tries really hard to leave town before July 4.

With this week’s opinion release, the dust has started to settle on who likely has what opinion.  Until opinions are released, such guesses are who likely initially got the opinion.  While not common, splits in how to decide a case and justices changing their minds as they dig further into writing an opinion can result in opinions being reassigned.  These predictions are based on the Supreme Court’s practice of trying to maintain a balanced workload — both within each month’s argument session and across the term as a whole.

At this point, enough opinions have been released to identify who still has opinions left to write from the first five months of arguments with two question marks.  The two question marks are two sets of companion cases — one from January in which two cases seek to overturn Chevron deference (a doctrine created by Justice Scalia that has courts deferring to administrative agencies over the proper interpretation of ambiguous regulatory statutes) and the other from February in which two cases involve state attempts to regulate interstate social media websites.  For both sets, it is possible that the Supreme Court will issue separate “authored” (i.e. the justice writing is identified) or that the Supreme Court will issue one “authored” opinion in one case with a brief per curiam (i.e. the justice writing is not identified) in the second case or that the Supreme Court will issue one opinion covering both cases.  If only one authoried opinion is released in both sets of cases, then things fall more smoothly in terms of the number of opinions per justice through February.  If either set has a second authored opinion, that adds an additional opinion for some justice making things more uncertain. Continue Reading...

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Persuasion vs. Coercion

Sometimes, the U.S. Supreme Court will schedule arguments to create a “theme” day.  In other words, the Court will schedule two cases which are technically unrelated but involve similar issues.  By hearing arguments in the two cases back-to-back, the Justices get two factually different pictures of conduct to point out some of the different ways that the issue might arise and, hopefully, can get some input through both cases on how a particular test for judging whether conduct crossed the line would play out.

This week, we had one of those theme days involving when governmental conduct indirectly infringes on the First Amendment.  The first case, Murthy, Surgeon General, vs. Missouri, arises from the efforts of the Surgeon General’s Office to talk with social media companies about posts containing medically harmful information related to COVID.  The nutty Attorney Generals from Louisiana and Missouri (which at that time was now Senator Eric Schmitt) filed a lawsuit in front of a handpicked judge in the Western District of Louisiana seeking an injunction barring all communications between federal officials and social media companies.  That “judge” granted that request.  The Fifth Circuit narrowed the injunction somewhat but left it substantially intact.   The other case, National Rifle Association vs. Vullo, involves a state financial services regulator trying to persuade regulated entities (banks and insurance companies) that they should stop doing business with the NRA.

What seems to be clear from the arguments in these two cases is that the Supreme Court is likely to make a distinction between persuasion and coercion.  In asking questions, several justices fell back on their own executive branch experience.  In traditional media, it is not unusual for reporters to call government officials asking for comments on a potential story.  In some cases, the story is one that, for a variety of reasons, the government official might prefer that the story not get published (or at least that certain details not run).  Sometimes those reasons are good reasons like in a murder investigation somebody might have leaked a key detail from the crime scene to a reporter which the police were intending to use as a “false confession check” (on the theory that only the killer would know that detail so any nut coming in to take credit for something they did not do would get that detail wrong).  But those reasons might not be strong enough for the government to seek a court order preventing publication.  So the government will try to convince the news media that it would be best if that information was not included in the story.  In making this request, the government might offer a “comp” like an exclusive interview with the police chief on some other topic.  It seems like, in the Murthy case, the Supreme Court is likely to slap the lower court and the state AGs hard for what is really a legally meritless argument.  There is really nothing here suggesting that these claims involve anything beyond routine attempts to persuade media to go with the official story.  And the First Amendment does not prohibit the government from trying to convince publishers to do the right thing. Continue Reading...

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Social Media and the Supreme Court — Round 1

One of the downsides of the legal system is that the final say on how laws apply to new technologies tend to fall on a group of older lawyers.  In other words, most of the votes are in the hands of people who are not on the cutting edge of technology.  This year, there will be several cases before the Supreme Court involving social media.  To put things in perspective, the four youngest justices essentially went to law school either while I was going to law school or right after I went to law school.  At the time that I was in law school, most students did not have e-mail accounts, and we were using very early versions of Word and WordPerfect as our software for writing papers and exams.  Needless to say, sites like Facebook and X were not part of our law school and college experiences.

This past week, we got the first of the social media cases for the year — actually two separate cases raising the same issue — whether a public official can block individuals from commenting on the official’s social media webpages.  When faced with novel issues, judges tend to try to fall back on existing legal doctrines even if that means forcing round pegs into square holes.  And to a some extent that is what we got in the lead case — Lindke vs. Freed in an actual unanimous opinoin written by Justice Barrett.

The basic facts of this case is that the webpage in question was the personal account of the public official.  The official had this account before running for and winning his current position.  However, he does not his public position on the account similar to how many people not their employment.  And he does use his webpage to mention what is going on with that position.  The people on the other side of this case took advantage of the comment feature of the webpage to critique what the city government was doing.  The public official deleted some comments that he thought were inappropriate or inaccurate before eventually blocking these individuals from commenting.  The people who were blocked brought a case claiming that, by blocking them, this official was violating their First Amendment rights. Continue Reading...

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