Supreme Court to weigh whether Covid misinformation is protected speech

WASHINGTON — As social media sites were flooded with misleading posts about vaccine safety, mask effectiveness, Covid-19’s origins and federal shutdowns at the height of the pandemic, Biden officials urged platforms to pull down posts, delete accounts, and amplify correct information.

Now the Supreme Court could decide whether the government violated Americans’ First Amendment rights with those actions — and dictate a new era for what role, if any, officials can play in combating misinformation on social media.

The Supreme Court is set to hear arguments next month in a case that could have sweeping ramifications for federal health agencies’ communications in particular. Murthy v. Missouri alleges that federal officials coerced social media and search giants like Facebook, Twitter, YouTube, and Google to remove or downgrade posts that questioned vaccine safety, Covid’s origins, or shutdown measures. Biden lawyers argue that officials made requests but never forced companies.

Government defenders say that if the Court limits the government’s power, it could hamstring agencies scrambling to achieve higher vaccination rates and other critical public health initiatives. Critics argue that federal public health officials — already in the throes of national distrust and apathy — never should have tried to remove misleading posts in the first place.

“The best way is to have a very vigorous offensive social media strategy, which we didn’t have,” said Paul Mango, a Trump deputy chief of staff for the Health and Human Services Department who worked closely on Operation Warp Speed, the effort to speed Covid-19 vaccines and treatments to market. “Rather than trying to keep bad information off by suppression, why don’t we have a strategy that really is very aggressive at propagating accurate information?”

Though the Association of State and Territorial Health Officials is not taking a stance on the case or the government’s argument that it can ask sites to take social media down, its chief medical officer Marcus Plescia also said the best use of federal public health resources is counter-messaging.

“We really are limited to the extent that we can control misinformation,” said Plescia. “The number one [request from state officials] is we need good messaging that’s been tested, and that’s shown to be effective.”

For their part, social media executives like Meta CEO Mark Zuckerberg have said in the past that they made and altered their content moderation policies on their own. But the tech executives are unlikely to weigh in now, considering they are in the midst of two other firestorms over moderation. One is a suit against a Florida law that would effectively diminish platforms’ abilities to moderate false and misleading posts. Another is last week’s very public battering by senators demanding more content moderation to protect childrens’ safety on their platforms.

The recent hearing before the Senate Judiciary Committee, which also called TikTok, Snap and Discord executives to testify, stands in stark contrast to the coronavirus misinformation lawsuit, as it conversely suggests tech companies aren’t doing enough to police their platforms. At one point, Sen. Josh Hawley (R-Mo.) urged Zuckerberg to stand up and apologize to families in the hearing room for damage caused by Facebook and Instagram use.

Senators from both parties seemed open to peeling back a federal protection of tech companies that host problematic or false content.

“It is now time to make sure that the people who are holding up the signs can sue on behalf of their loved ones. Nothing will change until the courtroom door is open to victims of social media,” South Carolina Republican Lindsay Graham said.

The Murthy quandary

Biden’s lawyers are set to argue that he, and his officials, can make the same type of demands.

A lower courts in this case ruled that the federal government can’t put any pressure on social media platforms to censor their content. Under that ruling, even public statements by the president about the teen mental health crisis could be construed as undue pressure, Solicitor General Elizabeth Prelogar argued in a legal filing.

For instance, under that ruling, a White House statement condemning the role social media plays in teens’ mental health and calling for potential legislative reform “might be viewed as coercion or significant encouragement under the Fifth Circuit’s novel understanding of those concepts,” she wrote.

But this case didn’t start with mental health, and mu