In a world where social media has become the new public square, the Supreme Court must decide whether the government can manipulate the conversation behind closed doors.

In a pivotal case that could shape the future of free speech in the digital age, on March the 18th, the Supreme Court of the United States (SCOTUS) heard arguments in Murthy v. Missouri on the question of whether the government can collude with social media companies to censor content. The case has far-reaching implications, particularly for the "Disinformation Dozen," a group of individuals who were put on a digital hit list by a dark money funded, UK-based group called the Center for Countering Digital Hate and wrongfully deplatformed, defamed, and vilified during the declared pandemic for exercising their First Amendment rights.

The transcript of the hearing can be found here. This group was mentioned in the context of the government's and social media platforms' efforts to address and suppress misinformation. Specifically, the document refers to the removal of accounts and content related to the Disinformation Dozen, impacting the ability of individuals to engage with their content:

"This is a group of people that the government thought was responsible for the majority of so-called health misinformation on social media. [...] when the platforms here in response to the pressure are taking down content and accounts related to those individuals called the Disinformation Dozen, that is necessarily impacting our plaintiffs' right to engage with their speech".

Another mention shows the platforms' actions in response to this group:

"Nick Clegg [...] sends this email to Vivek Murthy the Surgeon General and he says: 'Dear Vivek thanks for taking the time to meet. I wanted to make sure you saw the steps we took past this past week to adjust policies on what we're removing to take steps to further address the Disinfo Dozen. We've removed 39 profiles pages groups Instagram accounts. We're continuing to make other accounts harder to find'".

Among the "Disinformation Dozen" is Sayer Ji, founder of Greenmedinfo.com, an open-source website that shares research on natural and alternative medicine which has received ~250 million visits since its inception in 2009. Ji, along with other members of the group, faced censorship and backlash for sharing information that challenged the mainstream narrative and its associated mandated medical interventions during the pandemic. In a July 2023 post, Ji recounts his experience of being targeted by the US Surgeon General Murthy and other Biden administration officials as an "anti-vaxxer" and who his government, including President Biden, accused him of 'killing people with misinformation.'

Ji's actions, however, are consistent with that of a whistleblower, as he was one of the first to report on the government's own publicly acknowledged preparations for monitoring serious harms from the soon-to-be-deployed mRNA vaccines back in December of 2020.

In retrospect, many of the concerns and issues raised by this group have been found to have been accurate. In fact, leaked communications between the Stanford Virality Project and government officials indicate that not only did Big Tech platforms knowingly suppress the First Amendment rights of Americans, but they even censored true stories of vaccine injuries and deaths for fear it would contribute to 'vaccine hesitancy.'

The case before the Supreme Court has divided the justices, with some appearing to lean towards limiting the government's ability to influence content moderation on social media platforms, while others seemed more inclined to grant the government greater leeway in this regard.

Attorney General Andrew Bailey from Missouri, representing the respondents, expressed optimism that the conservative justices would rule in favor of the First Amendment and free speech. However, legal experts and attorneys who support the lawsuit were less confident following the hearing, expressing concerns that the ruling may not be entirely favorable to free speech advocates.

The case has garnered significant attention from both sides of the political spectrum, with hundreds of free speech advocates rallying in front of the Supreme Court during the hearing. The Rally to Reclaim Free Speech, sponsored by Children's Health Defense and nearly two dozen other organizations, highlighted the importance of this case in determining the future of free speech in America.

As the nation awaits the Supreme Court's decision, the case of Murthy v. Missouri serves as a reminder of the ongoing battle to protect the First Amendment in an increasingly digital world. For the "Disinformation Dozen" and others who have faced censorship for expressing dissenting views, the outcome of this case could be a crucial step towards justice and the restoration of their fundamental rights.

The Supreme Court's ruling in Murthy v. Missouri will not only impact the government's ability to shape public discourse through social media censorship but will also set a precedent for the future of free speech in the United States. As the nation grapples with the balance between public safety and individual liberties, the decision in this case will undoubtedly have far-reaching consequences for years to come.

Summary of Oral Arguments

The oral arguments in Murthy v. Missouri focused on the core constitutional and policy discussions surrounding government communication with private actors and its potential impact on free speech. The US Solicitor General argued that the government's actions did not amount to coercion, while the Louisiana Solicitor General, representing the states and individuals, asserted that the government should not be allowed to indirectly suppress protected speech.

Several justices, including Alito, Gorsuch, and Kavanaugh, expressed concern over the government's conduct and the potential for coercion through threats or inducements. On the other hand, Justices Sotomayor, Kagan, and Jackson seemed more inclined to allow the government to persuade or even coerce platforms to remove certain content in specific situations, such as during the COVID-19 pandemic or when dealing with national security issues.

The court also grappled with the challenge of finding a standard that allows for potentially valuable and non-coercive government speech while preventing abuse. The Louisiana Solicitor General argued for a strict adherence to the principle that the government cannot indirectly suppress protected speech, while the US Solicitor General maintained that only tangible harms from coercion should be considered a violation of the First Amendment.¹

The seemingly inescapable challenge for the court is to strike a balance between allowing the government to communicate with private actors in a non-coercive manner and preventing the abuse of this power to suppress protected speech.²

References

[1] David Inserra, "Summary of Murthy V. Missouri Oral Arguments," Cato Institute, March 19, 2024, https://www.cato.org/blog/summary-murthy-v-missouri-oral-arguments.

[2] Ibid.